A helpful blueprint to your last will and testament

By Andrew Zashin*

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.

Can a child, spouse or other family member be ‘disinherited’?

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

Inheritances – or, more precisely, who gets them – serve as the plot device for many a movie. Imagine, if you will, two hopeful heirs to a large family fortune. One heir coerces the elderly, not altogether there, relative to revise his will in order to disinherit the competition.

Or, an heir hatches an elaborate plot to get her rival out of the picture through more nefarious means. Perhaps a wealthy childless aunt is fed up with the lack of attention she received from her nieces and nephews throughout the years and leaves her entire fortune to her beloved cat. Can these things actually happen in real life? Sure they can. And, though they are relatively uncommon, sure they do.

While the term “disinheritance” probably brings to mind all sorts of terrible images of family fights and strife, all leading up to a climactic moment where the testator proclaims loudly that he is taking you out of his will, that is most often not how it plays out in the real world. More typically, rather than being accomplished with a dramatic flourish, a disinherited family member is simply omitted from the will.

And, the nieces and nephews who ignored their aunt all those years will probably only discover after their aunt’s passing that they are out of luck, even as Fluffy continues to live a life of luxury lapping up fresh cream and dining on sushi grade tuna.

On the other hand, when children are disinherited from a will, probate courts generally prefer to see that the will contains specific language indicating the disinheritance. Without specific language, there is a concern that the omission was accidental.

In cases where the language of the document very clearly states that someone has been disinherited and is to receive nothing from the estate, it will probably be followed. There are, of course, some exceptions that might lead the disinherited to reasonably challenge the will. For example, the will could be deemed invalid if it was not in writing, was not signed, or was not appropriately witnessed. It could also be challenged if it the writer was coerced or was not of sound mind to make important estate planning decisions at the time he signed it.

Spouses, however, enjoy a different status, in Ohio and in most states. Even if a will indicates that a spouse is intentionally disinherited, he or she really cannot be. Irrespective of what the will says, the widow (or widower) can instead opt to take a part of the estate. For example, she may still keep the marital home and all of its contents. She may be able to keep up to two automobiles. And she may be entitled to cash or other assets totaling up to half of the estate (though note that this amount may decrease if the testator has living children.)

Finally, it is important to understand that some assets are transferred on death with no regard to a will at all. For example, life insurance policies and retirement accounts have beneficiaries named, and the proceeds will be distributed accordingly. If there are any assets held in a trust, they will be distributed per the provisions of that trust. And, assets like bank accounts and real property that are held with payable-on-death or transfer-on-death provisions will be distributed accordingly.

The bottom line is that if you have been disinherited, or if you are seeking to leave a family member out of your will, it is important to talk to a legal professional. Probate laws are rather nuanced, and, while there are an infinite number of will templates and legal information available in books, software, and on the Internet, it is most prudent to seek professional advice that is specific to your case. After all, wouldn’t you rather get it right the first time?

Oh yes, and lest I forget about that would-be heir who tried to poison her brother to get the entire inheritance for herself, she will almost certainly go to prison with no inheritance at all.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

2023-11-10T13:38:15-05:00September 24th, 2014|Inheritance / Disinheritance, Wills / Living Wills|

Without will, your death could kill your relatives

By Andrew Zashin*

This article originally appeared as a column for the Cleveland Jewish News.

While official statistics are difficult to find, it has been estimated that more than half of adult Americans have no will to specify how their assets are to be distributed upon death. Most people understand that a will is a good thing, a prudent thing. Regardless, too many put it off. Some simply don’t make it a priority. Others simply assume they are too young, too healthy, or too cash-poor to bother. But whether you have $100 in the bank or $1 million, you fail to plan at the peril of your heirs.

What happens when someone dies without a will, or “intestate?” Intestacy rules may vary from state to state, and it is highly advisable to contact a probate attorney to assist with the estate of a loved one, or to plan your own. In Ohio, the assets of someone who dies intestate will be divided according to very specific rules.

At the outset, it is worth noting that some assets follow other, non-probate rules. Funds in retirement accounts and life insurance policy proceeds will be distributed to the beneficiaries specified with the plans. Assets held in a living trust will be distributed according to the trust provisions. Bank accounts, real property and vehicles that are held with payable-on-death or transfer-on-death provisions will be distributed accordingly, as will property held with survivorship provisions.

But other property – anything from the stock account to the sofa – will be distributed according to a complex set of intestacy rules. Ohio Revised Code 2105.06 provides that property will go first to a surviving spouse. If the deceased has no surviving spouse, it will go to his children, or the children of his children. However, if the surviving spouse is a step-parent to one or more children, the estate will be split between the spouse and the children or their descendants in amounts that depend not only on the number of children, but also upon the parentage of each. Then, if there is no surviving spouse, and no children or their descendants by blood or adoption, the property goes to the parents of the deceased. If there are no living parents, it goes to siblings. Then to grandparents. Then to next of kin. Then to stepchildren. And, finally, if no relatives could be found in any of those relatives, the property will line the state’s coffers.

Of course, unusual circumstances could arise to further complicate things. For example, a person who would otherwise inherit will be cut out if she does not survive the deceased by at least 120 hours. A child in utero at the time of the deceased’s passing can inherit, so long as she survives at least 120 hours after birth. A child whose paternity was never legally established at the time of death will not inherit unless paternity is later established. And, unsurprisingly, one will not inherit if they perpetrated certain crimes – murder, for example – against the deceased.

With so many rules to follow, the challenges of managing division of an estate without a will, especially as today’s family very often looks much less like “Leave it to Beaver” and much more like “Modern Family,” is quite apparent. The bottom line is that, even without a will, assets will be divided in some way. Why give control of that process to a statute?

Just as you would probably prefer to manage the estate of a loved one who left a clear will indicating his wishes, no matter how large or small your estate, your heirs would doubtless prefer the same. And, most importantly, you will retain more control over the process and you will have peace of mind knowing that your loved ones will be taken care of in the way that you, and not the state, would prefer.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.

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