Tips for Estate Planners
This article contains important information as to writing and maintaining a valid will or trust document.
Please read all of the materials in your estate plan to be sure they meet with your wishes and are accurate in order that your documents are not later judged to be invalid and so that your estate is not held to be intestate and all property does not have to be probated.
Although a new will or trust normally revokes all others written before it, be sure to destroy all previous documents by either burning of tearing them so that they cannot be used by parties who claim you did not intend to revoke them.
Do not change your will or trust without an attorney's supervision. Any addition to the will or trust without abiding by Ohio law may invalidate part or all of the document. A will or trust found in some mutilated condition may be held invalid. If the valid original cannot be found at the time testator's death, then the estate may be held intestate.
Divorce or a separation agreement voids all provisions pertaining to the ex-spouse unless the will ot trust expressly provides. If there are any other relatives, ex-spouse or children, it is best if they are mentioned in the will or trust even if not provided for as they may contest the it and claim you had promised them certain property, but forgot to include them.
Any will or trust should be reviewed periodically by an attorney approximately every five years. As the estate changes the will should be updated for those changes.
Because jointly held property normally passes to the spouse immediately upon the death of the other spouse, it is an excellent way to avoid probate if all property can possibly be held in a joint account. A joint bank or checking account will continue to give a spouse full rights to the funds in too eventuality of the deceased spouse.
It is highly suggested that the home, and all other property, be placed in joint ownership with a spouse (not a non-spouse such as a son, daughter or friend) so your spouse has right of survivorship. Tenancy in commas is not recommended far several reasons. Any co-owner can unilaterally destroy the purpose of the plan by an act which _breaks the jointure_ and destroys the right of survivorship. This would occur not only by voluntary conveyance, but also by any execution of your interest by a creditor.
Make sure that all life insurance companies have correct information and your spouse is the named beneficiary of these policies if you do not wish the insurance policies to become part of the estate. If the proceeds from the insurance goes to your estate it will have to go through probate.
If you own any stock check with the companies to make sure that they have either (1) only you or (2) you and your spouse listed as joint owners of the stock.
If you have elected to have a trust, the successor trustee must be selected carefully and should be a trusted and honest person as they will have great discretion over the estate. Normally it’s a good idea to make sure the trustee has the power to give beneficiaries their property in an emergency, but be limited to that amount. A well written trust specifically gives the trustee the right to deviate from the normally set trust rules and allows for invasion of the corpus so the question does not have to go to the court. The trustee has clear authority to reinvest the principle and to apportion the money.
Normally every estate should first pay off all debts, incurring any more or new debt should be considered as it will lessen the total worth of the estate and may cut into the general property when creditors are paid.
Along with a complete estate plan it is recommended that you include a living will and power of attorney separate from the will or trust. While these are different from the will or trust, they should all be kept together with all relevant documents in a safe, secure area. Also a power of attorney should be drafted and a letter of guidance to make information for closing your estate easier.
It is advisable that a person who makes a will or trust should also write a letter of instruction detailing all non-will or trust wishes and personal information. The purpose of such a letter is to provide the executor or the beneficiaries with additional personal information which probably is too intimate or too detailed in a will so they can better expedite the testator's wishes. At least three copies of the letter of instruction should be prepared and each copy placed in a sealed envelope marked _Letter of Instruction_ with the name of the testator. Copies should be distributed as follows: the first copy given to the executor, the second copy attached to the will, and the third copy put in a place where the testator's survivors will first look for important documents upon the testator's death.
To avoid future problems it is best to discuss with your spouse your feelings of your after death wishes.
Ohio law requires that there be three witnesses that see you subscribe or acknowledge your signature. Make sure that the witnesses are of sound mind and body and are not beneficiaries to the will. Although Ohio only requires two witnesses, the will should be valid for those states which may require three witnesses. Failure to have enough witnesses will void the will in many states. A minor may be a witness to a will as long as they are competent, however it is suggested that to avoid future problems they be at least 18 years of age. Witnesses should not be employees of a bank if they will be future executors of the estate which may invalidate the will.
Should they so decide, a surviving spouse can elect to take an intestate share not to exceed one-half of the net estate instead of the will. If the decedent is survived by two or more children or their issue, the surviving spouse's elected share cannot exceed one-third of the net estate. The election may be made any time after probate of will but must be made within one month after service of citation to elect.
A will or trust maker must have written consent of a spouse to any conveyance in property. In Ohio if any interest in land is conveyed without the spouses in consent, then it may be subject to their dower rights which would allow her a title to part of that property.
Ask your estate planning attorney if they can be kept a copy of your estate plan in their office or you can keep a copy in any other a secure place of your choosing (safe, safety deposit box, etc.). All documents pertaining to this estate should be kept together. In Ohio, a will may be deposited in the office of the judge of the county probate court for the cost of $5, A will deposited with the probate court would be delivered to the testator, the court or another, when the court or if the testator requests.