When it comes to the basic documents of an estate plan, few are more important than a last will and testament. This document, more often referred to as a will, is a legal writing that sets out how the person making the will wants their assets to be distributed at their death.
In the state of Ohio, as in many states, when a person dies leaving a valid will, it must be filed in probate court in order to begin the process of settling the decedent's estate. At this time, the will becomes public; anyone can visit the court and inspect the file in the probate records.
What Is a Will?
A will is a written document prepared according to the rules of the state in which the person making the will, the testator, resides. The will leaves instructions regarding who will be beneficiaries of the estate, that is, who will inherit the assets after the testator dies.
Assets distributed by the will include all probate assets. These can be real estate, stocks, bonds, bank accounts, vehicles, trust funds, and any other personal possessions or financial holdings that the deceased owns at the time of death.
Assets That Avoid Probate Process
Note that some of the deceased's assets do not pass through probate but, instead, transfer directly to a named beneficiary. For example, if real estate title is held by two or more individuals in joint tenancy with the right of survivorship, the property passes automatically to the survivor when one of the owners dies.
Likewise, life insurance policies and certain financial and bank accounts pass directly to a named beneficiary if the owner arranged for payable on death (POD) accounts.
Making a Valid Will in Ohio
In order for property to pass under a will, that will must have been prepared and executed according to the rules of the state in which the deceased lived. If the will was not properly prepared, it is not valid and will not be recognized in probate court.
What are the requirements for making a valid will in Ohio? The law regarding the valid execution and witnessing of a will in this state are set forth in Ohio Revised Code Title 21; Chapter 2107: Wills, Sections 2107.02 through 2107.15. The codes set out certain requirements for Ohio wills:
- Testator must be at least 18 years old or a lawfully married minor.
- Testator must be of sound mind, meaning they have not been deemed incompetent in a prior legal proceeding.
- Will must be in writing.
- Writing must be signed by the testator or, if that is physically impossible, signed by someone acting at their request.
- Will must be signed by two adult witnesses in the testator’s presence.
- Witness must not be beneficiaries under the will unless a close family member who would inherit under intestate law.
Intestate Succession in Ohio
If an individual dies in Ohio without making a will, or if they tried to make a will but did not follow Ohio state laws so that the will is invalid, their assets pass according to the intestate succession laws of the state. Intestate succession rules set out which family members inherit property when there is no will.
Generally, a surviving spouse and surviving children are given first priority, but if neither spouse nor children survive a decedent, the property is given to other relatives.
In Ohio, to be considered "surviving" for intestate purposes, a family member must live for at least 120 hours. This means that if the individual dies in an automobile crash for example, other family members in the same crash can inherit only if they live several days longer than the deceased.
Order of Priority for Heirs
Under Ohio probate law, if an individual dies without a valid will, their estate will generally pass entirely to a surviving spouse, even if there are surviving children from the marriage. If, however, there are surviving children from another relationship, they will share the estate with the surviving spouse.
Absent a living spouse or children, the deceased's estate passes in this order:
- To any living parents.
- To any living siblings.
- To any living grandparents.
- To more distant relatives.
Ohio Wills: Private or Public Records?
Ohio wills, like wills in most states, are a unique mix of private and public. Wills are private while the testator is alive. That means that nobody can "look up" the will of an individual while they are alive, even if they stand to inherit from them when they die.
The person making the will is free to hand out copies before they die if they wish to do so, but the law does not allow anyone to view them without the testator's permission.
Once the person dies, however, the will becomes a public document. When a probate case is opened in Ohio courts, the last will is filed in the probate court as part of the probate court record. At that stage, the will, like the vast majority of court records in Ohio, is public and open to viewing by any member of the public.
Locating an Ohio Will
Anyone wishing to determine if a deceased person had a valid will can contact the probate court in the Ohio county where the person lived. Each court will have its own procedures for making this type of inquiry, so a call to the court clerk or a visit to the court's website is a good place to start.
One viable option is to visit the probate court during business hours with the name of the deceased and the date of death. The court clerk will assist in locating the file and may also cop documents for a per-page copy fee.
It may be possible for those outside the area to request a copy of a will from the Ohio county where probate case was filed. Details are available from the court as to how to order copies, and the cost for doing so. Alternatively the court clerk may be able to provide the contact details of the executor managing the will.
Locating Probate Filings Online
Finally, it may be possible to look up probate filings online. Private companies offer these services, but if there is an online look-up option, the probate court clerk may be able to direct a caller to the appropriate site with a searchable database, avoiding any fees.
- In Ohio, a Certificate of Notice of Admission of Will to Probate must be filed within 60 days of the executor's appointment. The state of Ohio gives you three months from the date of filing to open a claim.
Teo Spengler earned a JD from U.C. Berkeley Law School. As an Assistant Attorney General in Juneau, she practiced before the Alaska Supreme Court and the U.S. Supreme Court before opening a plaintiff's personal injury practice in San Francisco. She holds both an MA and an MFA in English/writing and enjoys writing legal blogs and articles. Her work has appeared in numerous online publications including USA Today, Legal Zoom, eHow Business, Livestrong, SF Gate, Go Banking Rates, Arizona Central, Houston Chronicle, Navy Federal Credit Union, Pearson, Quicken.com, TurboTax.com, and numerous attorney websites. Spengler splits her time between the French Basque Country and Northern California.