Wills and Trusts: Is Relying on a Will Good Estate Planning?

As part of our  Ohio Estate Planning Guide we include an important topic regarding drafting a Will:

Is Relying on a Will Effective Estate Planning?

For most people estate planning is accomplished by drafting a Last Will and Testament. A Will is simply a document that specifies how you would like your assets to be distributed at death. As we’ve already seen, a Will does not control the distribution of all your assets. Jointly owned property, life insurance proceeds, and transfer on death accounts pass outside your Will. A Will only determines the distribution of the assets you own at the time of your death that do not have beneficiary designations.

Relying on a Will guarantees that your estate will be administered through the probate process. As stated previously, probate can be an expensive and time-consuming process. In addition, the probate process is a matter of public record. Anyone can go to the probate court and review your file to see what assets you owned and the persons to whom they are being distributed.

Wills Can be Problematic with Multiple Marriages

A Will can also present problems for individuals who are involved in second marriages. For example, a woman who has children from a previous marriage may desire to leave all of her assets to the children of the prior marriage. Even if her Will provides that all of her assets are to be distributed to
the children of her first marriage, if she dies before her new husband her children’s inheritance will be at risk. Ohio law allows a surviving spouse to elect to take against the Will. In most cases, this means that the surviving spouse can take up to one-third of their deceased spouse’s assets even if no
provision has been made for them in the Will.  Read our blog post, Estate Planning: Considerations When You Have a Stepfamily.

Wills Do Not Help in the Case of Incompetency

A Will becomes legally effective only at death. Accordingly, it offers no protection if the person who drafted the Will becomes legally incompetent during his or her lifetime. Often someone who has been named as Executor in a person’s Will believes that they have the authority to manage that person’s assets if they become incompetent. This is simply not the case. Their only legal recourse is to go to probate court and seek to be appointed guardian of the incompetent person.

Related Posts that Discuss the Importance of Wills and Trusts:

At Joseph L. Motta we believe in educating our clients in order for them to make the best decision for their situation. We post 4-5 blogs each month to help show examples and share stories about estate planning, wills and trusts, special needs trusts, Medicaid planning, long-term care strategies and general estate planning information.

Estate Planning Guide

At Joseph L. Motta LLC we are devoted to helping our clients leave a legacy - not a predicament. We understand estate planning is not as easy as making a will and setting up some estate planning documents, that's why we treat every client with the attention each unique situation deserves. We create a comprehensive estate planning guide each year for you to use as a guide and reminder if any part of your plan could use an update.

Included in this 2023 Estate Planning Guide:

  • Understanding Probate. The four steps to settling an estate through Probate.
  • Benefits of a Living Trust. What is a revocable living trust and how can it be an efficient tool to avoiding probate at your death, as well as to avoid living probate in the event of your incapacity.