Less than half of the population has a last will and testament. Ohio law provides a way to divide the property, or “estate,” left behind when a person dies without a will.
Generally speaking, your estate will go to your spouse. Or, if you have no spouse, your estate will go to your children. If you have no children and no spouse, your estate will go to your parents, or your siblings, or their descendants, in that order.
In many cases, the intestacy laws may provide what you would like to see happen anyway. But so you may want to select the person who will be responsible for administering your estate. You may want to provide that the administrator be paid (or not paid) for his or her services.
And, if you are divorced and remarried, if you have children from different relationships, if you want certain people to receive specific heirlooms, accounts, or assets, or, really, if your situation is anything other than wanting to simply leave your estate to your spouse or children, it is so important to put your wishes formally in writing.
Here are some questions you will want to consider:
What assets are in your estate?
Many assets, such as accounts that are “payable on death” or jointly held, retirement accounts on which a beneficiary is named, life insurance policies, real property that is jointly held or else subject to a “transfer on death” designation, or assets held in a trust, will not be divided by the probate court (or by will.) Instead, those things will transfer to the joint account holder, beneficiary, or other payee. Anything otherwise in your name or owned by you is probably an estate asset.
What debts are in your estate?
You may have heard your debts do not survive you, and they usually go away upon death. It is true that loved ones will not generally be responsible for the debts of a deceased relative. However, it is important to note that the debtors – a mortgage holder, a credit card company, etc. – will have a claim against the estate and that debt will likely need to be repaid from the estate before your heirs will receive any inheritance.
Who do you want to inherit from your estate, and how?
An heir could be a person or an organization, and of course provisions are occasionally made for beloved pets. Keep in mind it is not really possible to completely write a spouse out of a will in the state of Ohio. A surviving spouse, by law, has the right to certain assets, despite what a will provides. You should clearly articulate all individuals you are intending to include, and any you may be intending to exclude, otherwise the probate court may incorrectly presume what you intended. In addition, you should think about what you want to see happen if one of your heirs predeceases you. Do their descendants inherit their share or something different?
Who do you trust to appropriately administer your estate, ethically and accurately handle funds, and enact your wishes?
Keep in mind that individual would have to ultimately accept the appointment. Typically, that individual would be paid for their services, usually proportionate to the size of the estate, but you may make some alternate request known if you feel it is appropriate.
If you have minor children you may specify your intention as to responsibility for their care. A court could ultimately decide that a different arrangement is more appropriate, but your wishes would doubtless be considered.
You are not required to hire an attorney to draft your will. But it is important to understand that certain formalities must be observed. For example, it must be signed by you and witnessed by at least two individuals who do not stand to benefit from the estate. And, more complex situations can get tricky, and you may find it useful to at least consult a will drafting software package, book, the Ohio Revised Code, or other how-to resources to be certain you are saying what you think you are.
This article originally appeared as a column for the Cleveland Jewish News.