A last will and testament or “will” is a key component to an estate plan and allows the person creating the will (the “testator”) to take control of several important decisions that need to be made at death. Control is the key benefit of having a will and implementing your own estate plan. If you die without a will, there are laws in place to make decisions for you, but those decisions may not be consistent with what you would have wanted. The following are a few of the major decisions that will be made on your behalf if you die without a will.
Naming Your Executor
By executing a will, you can nominate someone to serve as the executor of your will. The executor has several responsibilities and should be organized and capable of meeting deadlines. Some of the executor’s duties are to collect the assets of the decedent’s probate estate, report the assets to the probate court, settle any creditor claims and pay all taxes and expenses associated with the estate, distribute assets in accordance with the provisions of the will and account to the court for all activities of the estate during administration. If you die without a will or do not nominate an executor, the probate court will appoint a person to serve as administrator for your estate, but it might not be the person that you would have chosen to administer your estate. The court gives priority based on relationship to the decedent, with the surviving spouse, then children and then other relatives having priority to be appointed as administrator. Unlike the executor, the administrator must be a resident of Ohio. Administrators typically have the same duties and responsibilities of executors.
Naming the Guardian for Your Minor Children
For testators with minor children, the nomination of a guardian of their children might be the most important decision to be made in a will. In short, the guardian is responsible for the upbringing of minor children. The court gives deference to guardians named in a will so long as the person nominated is deemed suitable. If you die without a will or do not name a guardian of your minor children in your will, then the court will appoint one, but again, like the appointment of an administrator if you do not nominate an executor, the person appointed as guardian may not be the person you would have chosen.
Directing Who Receives Your Property
A will also enables you to determine who will receive your property. If you have a specific asset, such as an important family heirloom, a car or a home, that you wish for a certain individual to receive, you may need a will to be sure that happens. A will can also specify how much of your estate, in specific dollar amounts or percentages, passes to certain individuals. If you die without a will, the statute of descent and distribution determines who receives your estate. Distribution in such a case depends on whether there is a surviving spouse and which relatives survive the testator (see http://codes.ohio.gov/orc/2105.06v1).
These are just a few of the benefits of executing a will. If you would like to learn more about the benefits of a will or have questions about other estate planning tools, please do not hesitate to contact me.