Estate Planning Part II: Wills
In my last article, we talked about how to avoid probate on an asset-by-asset basis in Ohio. In this article, we will talk about the safety net in the event that there are any assets that you forgot. This safety net is the will. Many people believe that wills give immediate power to the executor to handle all of the assets after death. This is not true. Wills are only a directive to the probate court and in order for the executor to gain authority to act as executor, the will must be taken to the probate court and the powers of executor must be conferred by the court.
Even if you make all of your assets non-probate (and if they are, they are not subject to the probate court or the will), it is important to still have a will just in case you forgot about an asset or in the event that you want to avoid the statute of decent and distribution. In Ohio, it is this statute that dictates to the court how to distribute your assets. The only thing that can trump the statute in directing the court is the will (trusts can as well, but that will be another article). The statute dictates, in general, that all of your stuff goes to the surviving spouse (and sometimes minor children of the spouse); if there is no spouse, then it goes to the children; if there are no children, then their children; if there are no descendants, then to your parents; if they aren’t around, then their children (your brothers and sisters); then their children; if none of those people are around, it goes back a generation; and then by another generation; and if none of these people exist, then the statute makes allowance for step children; and if they don’t even exist, then all of your stuff will go to the State of Ohio.
Even if you are okay with this plan, it’s still important to have a will to name the executor- the person given the power to distribute the assets. In the will, you can go against the statute and name specific people to have your assets (your beneficiaries). These people could be friends and not necessarily blood relatives. You can disinherit people under the will.
One of the most important times to have a will is after having children. In the will, you can name someone to be guardian over the minor children in the event that you or you and your spouse die. This is important because often times, when both parents die, the court is faced with two sets of grandparents who are equally qualified to have the children. It’s heartbreaking for the kids to watch family members fight over them.
Even with a good plan for the future, you’ll want to make sure your stuff, even the stuff you forgot, is in good hands, so it’s always important to get a will so your final wishes can be heard.