Is Relying on a Will Good Estate Planning?

As part of our 2020 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.