Ohio Wills vs. Trusts
Ohio offers residents distinct advantages for estate planning with its favorable legal framework. The Buckeye State repealed its estate tax in 2013, provides streamlined probate for estates under $35,000 (or $100,000 for surviving spouses), and recognizes transfer-on-death designations for both real estate and vehicle titles. With provisions for “legacy trusts” that offer strong asset protection, admission of technically deficient wills under certain circumstances, and clear spousal protection through elective shares, Ohio residents have powerful estate planning tools to efficiently transfer assets while safeguarding their family’s financial future.
Table of Contents
US Map For The Different Will and Trust Requirements by State
Interested in other state’s law regarding wills and trusts? Click the ABOVE state you want to be taken to.Â
Ohio Will Requirements
An Ohio Last Will and Testament should include:
- Age and Capacity: Testator must be “of sound mind and memory” and at least 18 years old
- Format: Must be in writing
- Signature: Must be signed at the end by the testator or by another person at the testator’s request and in the testator’s conscious presence
- Witnesses: Must be witnessed by at least two disinterested witnesses who are at least 18 years old
Witness Requirements
For Ohio wills, witnesses must:
- Actually observe the testator signing the will or hear the testator’s declaration that the testator’s signature is genuine
- Be at least 18 years old
- Be physically present (Ohio’s statute specifies that “conscious presence” does not include observation enabled by telephone or video conferencing)
If a will provides for distribution of estate property to a person who served as a witness, the bequest to the witness is void, though the remainder of the will is still valid. If the witness would have received a share of the estate had there been no will, the witness receives the lesser of the intestate share or the devise voided under the will.
Document Incorporation
Ohio wills may incorporate another document, such as a memorandum of personal property, by reference. The incorporated document must be referred to in the will as being in existence at the time the will is made. This provision allows testators to make more detailed dispositions of specific items of personal property without including each and every disposition within their wills.
Notarization
Ohio’s probate code does not require wills to be notarized and does not include any provision for “self-proved” wills admissible in probate with a notarized affidavit.
Need help creating the right estate plan for your Ohio family?
Our estate planning specialists can help you navigate Ohio’s unique laws and create a personalized strategy.
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Amendment, Revision, and Revocation of Ohio Wills
Revoking an Ohio Will
An Ohio will can be revoked through:
- Physical destruction of the document by the testator (or by someone else at the testator’s request)
- Execution of a subsequent document—including another will or codicil—that satisfies all formalities required for a valid will
Effect of Divorce
If a testator is divorced after executing a will, any dispositions of property to the former spouse and any appointments in favor of the former spouse are void—except if the will expressly states that provisions relating to the testator’s spouse are intended to survive divorce.
Holographic and Oral Wills
Holographic Wills
Ohio generally does not recognize holographic wills (i.e., a will written in the testator’s own handwriting). However, if an Ohio will is handwritten, witnessed, and otherwise satisfies all legal requirements for a valid will, it is a valid testamentary document.
Oral (Nuncupative) Wills
Ohio law recognizes oral (or “nuncupative”) wills under limited circumstances. For an oral will to be valid:
- The terms must be spoken by the testator while suffering from his or her final illness prior to death
- The terms must be heard by two disinterested witnesses
- The witnesses must testify that the testator was of sound mind when making the will
- The witnesses must make a written record of the terms within ten days after the testator dictates the oral will’s terms
Ohio Trust Requirements
Legal Framework
Ohio has adopted the basic framework of the Uniform Trust Code, with a few variations. An Ohio trust must serve a purpose that is:
- Lawful
- Does not violate public policy
- Is possible to achieve
Trust Creation Methods
Under Ohio law, a trust can be created by:
- A grantor’s transfer of property to a trustee
- A grantor’s declaration that property is owned as trustee
- Exercising a power of appointment in favor of a trustee
- Through a court order
Capacity Requirements
To create a valid trust, the grantor must have legal capacity to create the trust.
Written vs. Oral Trusts
While most trusts are memorialized by a written instrument, Ohio law permits oral trusts as long as the terms of the trust can be established by clear and convincing evidence.
Trustee and Beneficiary Requirements
For a valid Ohio trust:
- A trust’s trustee must have actual duties to perform
- Trusts must usually have a definite beneficiary—subject to a few exceptions such as animal trusts, charitable trusts, and trusts granting the trustee authority to select a beneficiary from among a class
As a general rule, the same individual cannot be a trust’s sole trustee and its sole beneficiary. However, a trust won’t be invalid as long as another person has a future beneficial interest in the trust assets, even if it is contingent.
Trust Termination
An Ohio trust terminates when:
- It is revoked or expires under the trust’s own terms
- A court finds that no purpose of the trust remains to be achieved
- The purpose is no longer lawful or has become impossible
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
Special Considerations
Admission of Non-Compliant Will
Technically Deficient Documents
Although the requirements for a will generally must be strictly adhered to, Ohio law allows a technically deficient document to be admitted to probate if it can be shown by clear and convincing evidence that:
- The decedent prepared the document or caused it to be prepared
- The decedent signed the document and intended for it to serve as a will
- Signing occurred while the decedent was in the presence of at least two witnesses
Lost or Destroyed Wills
Similarly, a will that has been lost or destroyed can be admitted to probate if the will’s contents and previous validity can be established by clear and convincing evidence—and if no opponent of the will can show that the testator intended to revoke it.
Streamlined Probate
Small Estate Procedures
Upon the petition of an interested party, Ohio allows for streamlined probate for small estates. The simplified process may be available if an Ohio estate is valued less than $35,000, or if the value is under $100,000 and the surviving spouse will receive the entire estate. If a petition is granted by the probate court, the executor can distribute assets without going through the full administration process.
TOD (Transfer-on-Death) Designations
Non-Probate Transfers
Ohio recognizes “TOD” designations on both motor vehicle titles and real estate deeds. When the designation is present, the asset automatically transfers to the designee upon the original owner’s death, with no need for probate. TOD designations can also be included on securities.
Estate Tax
No State Estate Tax
The Ohio legislature repealed Ohio’s estate tax beginning in 2013. Large Ohio estates may still be liable for federal estate taxes.
Domestic Asset Protection Trusts
Legacy Trusts
Ohio’s Trust Code authorizes irrevocable “legacy trusts” that can serve as domestic asset protection trusts providing stronger protections than what is available in most states. If the statutory requirements are met, the grantor’s creditors are unable to attach trust assets to satisfy claims after an initial 18-month period after the trust’s creation.
Trust assets are protected from creditors even if the grantor still has some rights and beneficial interests relating to the wealth held in the trust and to the trust itself—including the right to:
- Replace the trustee
- Veto distributions
- Access up to 5% of trust assets per year
An Ohio legacy trust’s trustee must be an eligible third party and must have discretion over distributions.
Need help creating the right estate plan for your Ohio family?
Our estate planning specialists can help you navigate Ohio’s unique laws and create a personalized strategy.
Wills vs. Trusts: Comparison
| Feature | Wills | Trusts |
|---|---|---|
| When It Takes Effect | After death | Can be immediate (living trust) or after death (testamentary trust) |
| Probate Process | Requires probate | Assets in trust avoid probate |
| Privacy | Public record | Generally private |
| Challenges | Can be challenged in probate court | More difficult to challenge |
| Cost to Create | Generally less expensive | Usually more expensive |
| Ongoing Administration | None until death | May require ongoing management |
| Protection During Incapacity | None (requires separate power of attorney) | Can provide management if grantor becomes incapacitated |
| Ohio Special Feature | Admission of technically deficient wills; limited oral wills; TOD deeds and vehicle titles | Legacy trusts with strong asset protection; streamlined small estate probate; no estate tax |
Conclusion
Creating a will or trust does not have to be difficult or intimidating for Ohio residents. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests—can add complexity and result in unforeseen consequences.
Ohio offers unique estate planning tools that provide both flexibility and protection. The ability to admit technically deficient wills to probate (with clear and convincing evidence) provides a safety net for those whose documentation might not be perfect. Additionally, the state’s recognition of oral wills in limited circumstances offers an option in emergency situations.
With no state estate tax since 2013, Ohio provides a favorable environment for estate planning. The state’s streamlined probate for estates under $35,000 (or $100,000 for surviving spouses) can significantly reduce administrative complexity. For larger estates, Ohio’s legacy trusts offer some of the strongest domestic asset protection available in the United States.
When any out-of-the-ordinary issues are present, it’s advisable to consult with an experienced attorney familiar with and licensed under Ohio law to ensure your estate plan takes full advantage of the state’s provisions while avoiding potential pitfalls.
Ready to Protect Your Ohio Family’s Future?
Join the thousands of Ohio families who have secured their legacy with our personalized estate planning strategies. Our approach helps you avoid probate, protect assets, and ensure your wishes are carried out exactly as you intend.
- ✓ Avoid costly probate and family disputes
- ✓ Maintain privacy of your financial matters
- ✓ Protect assets during incapacity
- ✓ Create safeguards for children and loved ones
Explore Estate Planning Strategies
Free consultation with our estate planning specialists
THE ULTIMATE FREE DOWNLOAD
The Estate Planners Tactical Guide
Essential Legal Protection for Achievers
FAQs: Ohio Wills and Trusts
Q: What are the requirements for a valid will in Ohio?
A: An Ohio will must be in writing, signed at the end by the testator (18+ and of sound mind), and witnessed by two disinterested adults who see the testator sign or hear them acknowledge the signature. If the testator can’t sign, another can sign at their direction in their presence.
Q: Does Ohio recognize oral or holographic wills?
A: Ohio recognizes oral (nuncupative) wills only if spoken during the testator’s final illness, heard by two disinterested witnesses, and recorded within 10 days. Holographic wills are not generally valid unless they meet standard witnessing requirements.
Q: How can I avoid probate in Ohio?
A: Avoid probate with living trusts, joint ownership with right of survivorship, transfer-on-death (TOD) designations for real estate, vehicles, and securities, or payable-on-death (POD) accounts. Small estates under $35,000 (or $100,000 for a spouse) can use streamlined probate.
Q: What is an Ohio legacy trust?
A: An Ohio legacy trust is an irrevocable domestic asset protection trust that shields assets from creditors after 18 months, even if the grantor retains some rights (e.g., vetoing distributions). It requires a third-party trustee with discretionary power.
Q: What protections do surviving spouses have in Ohio?
A: Ohio grants surviving spouses an elective share of 50% of the estate if there’s one or no child, or one-third if there are two or more children, unless waived (e.g., by prenuptial agreement), ensuring they aren’t fully disinherited.
Q: Does Ohio have an estate tax?
A: No, Ohio repealed its estate tax in 2013. Large estates may still face federal estate taxes, but there’s no state-level estate or inheritance tax.
