Posted by & filed under Wills & Probate.

“What an awful thing to think about—death, and what happens after I die!” Because of this many people, maybe most, put off making a Will.

The fact is that if a person does not make a Will, the state in which that person resides makes a Will for him/her. Often, it is not the Will the person would have made had they done so for themselves. In many states, including Ohio where I practice, children as well as a surviving spouse are beneficiaries under the State statutes. The statutes may provide that a person the decedent would not have selected to be Executor winds up being appointed to administer the probate estate. Without a Will, the administrator of the Estate may not be able to do things that are necessary without great expense, like sell real estate.

Failing or refusing to make a Will may allow people to benefit from the Estate who the decedent never intended should benefit or prohibit people from benefitting who the decedent would have intended to benefit; will increase the costs of administration; and may permit someone objectionable to the decedent to administer the Estate. It also increases the possibility of relatives fighting.

These are all good reasons to make a Will. But what is a Will? In every state, there is a statute which lists the requirements for a document to be a Will. For example, in Ohio, in order for a document to be a Will, it must be signed at the end by the person creating the Will; it must be signed in the presence of two witnesses who are not related to the person making the Will and who are not named as beneficiaries or Executor in the Will; the two witnesses must hear the person making the Will say (or acknowledge) the document is his or her Will; and the two witnesses must see each other sign the Will as witnesses. A document which does not meet these requirements is not a Will under Ohio law.

Does a person need to see a lawyer to make a Will? No, but it is not a good idea to make a Will without a lawyer who is knowledgeable about Wills. There are many issues people do not think about when making a Will, and a knowledgeable lawyer can pull those issues out in talking to the client about making a Will.

What kind of things should a person think about in making a Will? The most important thing to think about is who should be a beneficiary. Contingent beneficiaries should also be considered in case the primary beneficiary/ies do not survive the person making the Will. The person who will be in charge (the Executor) should be identified. Specific gifts should be considered—whether to make specific gifts, and if so, to whom.

There may be other issues to consider. In second marriages, and especially if there are “his, hers, and ours” children, which children are included, or excluded, as beneficiaries? Are adopted children (usually adopted grandchildren) included as beneficiaries? Upon my death, do I want my surviving spouse to be able to change the distribution of assets to exclude children from my first marriage? Do I have a child or grandchild with special needs, or special talents? If I have a business, who will succeed me in that business? These and other important questions need to be discussed with a lawyer who is knowledgeable about Wills and estate planning.

To discuss making a Will, or to review your existing Will and estate plan, contact The Law Office of John C. Grundy at 330.637.9030, an experienced Northeast Ohio estate planning lawyer.