OHIO WILLS AND TRUSTS REQUIREMENTS
Statutory Authority.
Wills: Ohio Probate Code, Chapter 147 (O.R.C. §2107.01, et. seq.).
Trusts: Ohio Trusts Code (O.R.C. §5801.01, et. seq.).
Ohio Will Requirements.
Ohio wills must be in writing, signed at the end by the testator (the person creating the will), and witnessed by at least two disinterested witnesses. If a testator is unable to sign on his or her own behalf, another person can sign for the testator at the testator’s request and in the testator’s conscious presence. Under Ohio’s statute, “conscious presence” does not include observation enabled by telephone or video conferencing.
To have legal authority to create a valid will under Ohio law, a testator must be an adult (i.e., at least 18 years old) and of sound mind and memory. A will is invalid if, when executing the document, the testator was under the undue influence of another person—such as if the testator was under duress.
The two witnesses to an Ohio will must be at least 18 years old and must actually observe the testator signing the will or hear the testator’s declaration that the testator’s signature is genuine. 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.
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.
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.
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Amendment, Revision, and Revocation of Ohio Wills.
An Ohio will can be revoked through physical destruction of the document by the testator (or by someone else at the testator’s request). Ohio wills may also be revoked by execution of a subsequent document—including another will or codicil—that satisfies all formalities required for a valid will.
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.
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.
Ohio law recognizes oral (or “nuncupative”) wills under limited circumstances. The terms of the oral will must be spoken by the testator while suffering from his or her final illness prior to death. It must be heard by two disinterested witnesses, and the witnesses must testify that the testator was of sound mind when making the will. The witnesses must also make a written record of the terms within ten days after the testator dictates the oral will’s terms.
Ohio Trust Requirements.
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, and that is possible to achieve. 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, by exercising a power of appointment in favor of a trustee, or through a court order.
To create a valid trust, the grantor must have legal capacity to create the trust. 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.
A trust’s trustee must have actual duties to perform, and 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.
An Ohio trust terminates when it is revoked or expires under the trust’s own terms, when a court finds that no purpose of the trust remains to be achieved, or when the purpose is no longer lawful or has become impossible.
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Essential Legal Protection for AchieversSpecial Considerations.
Admission of Non-Compliant Will: 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 (1) the decedent prepared the document or caused it to be prepared, (2) the decedent signed the document and intended for it to serve as a will, and (3) signing occurred while the decedent was in the presence of at least two witnesses.
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: 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.
Spousal Elective Share: The surviving spouse of an Ohio decedent has the right to receive a guaranteed “elective share” of the decedent spouse’s estate—even if the decedent left a will saying otherwise. If the decedent has one or no children, the elective share is 50% of the estate. If the decedent has two or more children, the elective share is one-third. In either case, the surviving spouse can choose to either receive the elective share or whatever is provided under the will (but not both). The elective share can be waived by, for example, execution of a prenuptial agreement.
TOD (Transfer-on-Death) Designations: 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: 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: 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, to veto distributions, or to 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.
Creating a will or trust does not have to be difficult or intimidating. However, certain circumstances—like second marriages, stepchildren, aging parents, special needs beneficiaries, guardianships, and business interests (to name a few)—can add a layer of complexity and result in unforeseen long-term consequences. Whenever any out-of-the-ordinary issues are present, it’s a good idea to consult with an experienced attorney familiar with and licensed under the laws of the relevant jurisdiction.
