What is a Will?

A will prepared by an experienced attorney at Erb Legal LLC is a written document by which you can designate how your real and personal property is to be distributed after your death. A properly written and executed will permits you to control your estate by:

  • Designating a representative, known as an “executor,” to carry out your wishes as stated in the will.
  • Naming the people, charities, or organizations to whom you wish to leave your money and assets.
  • Designating a guardian for minor children and a trustee to be in charge of money and property left to the children.

Property that you can control through a will includes anything you own in your name at the time of your death. This includes a house, car, money, stocks, and other items of real or personal property.

Certain items, such as life insurance policies or property you own jointly with another person, might not fall within the control of a will. For example, jointly owned property in which the death of one of the owners results in the title to the property automatically passing to the surviving joint owner cannot be disposed of through a will.

Legal Requirements of a Will in Ohio

At Erb Legal LLC, the drafting and execution of a last will and testament is handled so as to comply with Ohio laws.

The requirements for a valid will in Ohio include:

  • Under most circumstances, the will must be typed or handwritten.
  • The person making the will must be at least 18 years of age or older.
  • The maker of the will must be of sound mind and must do so of their own free will.
  • The will must be signed by the maker, also known as the “testator,” in the presence of at least two witnesses, who must be at least 18 years of age and must sign the will in the presence of each other and the testator.

If a person is unable to sign the will, the law in Ohio permits another person to sign it, provided it is done at the express direction of the maker. The witnesses to the will must hear the instructions from the maker to the person signing the will.

Dying Without a Will

State law provides that if you die while owning real or personal property, but without a last will and testament, your estate will be distributed to your relatives by a representative named by the court. The law designates the order in which relatives are entitled to share in your estate starting with your spouse and your children.

If you do not have a spouse or children, the law designates your parents, your brothers and sisters, and continues on through cousins until a relative is found to whom to give your assets. In rare instances where no relatives can be found, the law gives the property to the state.

The benefit of having a will prepared by Attorney Thomas L. Erb Jr. is that you can control who gets your estate and whether it is given directly or through a trust.

What is a Trust?

A trust is a written agreement that, if prepared and executed properly, is legally enforceable. A trust creates an arrangement under which a person transfers or acquires assets in the name of the trust. The assets are held and administered by a third-party trustee.

Trustees serve as fiduciaries. This means they owe a high degree of loyalty and trust to the creator of the trust agreement. Trustees must administer the trust according to the instructions written into the trust agreement by the creator. This includes instructions about how to dispose of or distribute the assets after the death of the maker of the trust. Trusts can be useful components in an overall estate plan, along with or instead of a last will and testament.

Testamentary Trusts

Trusts in Ohio fall into two categories: Living trusts and testamentary trusts. A testamentary trust is one that is established through language in a last will and testament, but it does not become effective until the maker of the will dies and the will is offered for probate. The language in a will establishing the trust usually includes the names of a trustee and an alternate, the names of the beneficiaries of the trust, and instructions as to the money or assets to go into the trust and the conditions under which they will be distributed.

Living Trusts

A living trust is either revocable or irrevocable. A revocable trust allows its maker to control the assets and make changes to the terms of the trust. Because of the control retained by its maker, a revocable trust cannot be used for long-term estate plans that wish to include Medicaid planning in the event that the maker might require nursing home care. Revocable trusts cannot be used to establish a special needs trust for a beneficiary who receives public benefits such as Supplemental Security Income.

Irrevocable trusts are those in which the maker of the trust relinquishes all title, ownership rights, and control of the assets transferred into the trust. Changes to an irrevocable trust usually can only be made with the consent of the beneficiaries. Because the maker of an irrevocable trust gives up all rights to the property, these types of trusts can be used for Medicaid planning, to protect assets from third-party claims, and to shield life insurance proceeds from federal estate taxes upon the death of the maker of the trust.

Ohio Legacy Trust Act

Ohio now allows residents to use an irrevocable trust to protect their assets from claims by creditors. The Ohio Legacy Trust Act contained in Chapter 5816 of the Ohio Revised Code allows the maker of a trust to shield assets as long as the trust in which the assets are held is irrevocable, and the trustee must be an Ohio resident.

The maker of a legacy trust is permitted to retain some powers over the trust and the assets including:

  • The right to receive a distribution of principal and income from the trust.
  • Withdrawal of up to five percent of the principal each year.
  • Veto power over asset distributions from the trust.
  • The ability to replace a trustee.
  • The right to control how trust income and principal are distributed to beneficiaries.

An Ohio legacy trust will generally only protect against claims arising after the creation of the trust. Creditors with claims arising prior to the assets being acquired by or transferred to the trust might not be protected.

Differences between Trusts and Wills

A last will and testament, more commonly known as a will, is a legal document in which a person appoints a representative known as an executor to carry out the document’s instructions for the distribution of the will maker’s estate after death. Unlike an executor, who must be appointed by a court after the death of the maker of a will, a trustee has the power to administer trust assets without seeking approval from a court or waiting for the maker to die.

Because trusts do not require a court proceeding, they help to maintain the privacy of an individual’s finances better than a will. Probate proceedings in which a judge appoints an executor are public proceedings that require the filing of the original will with the court clerk. Once filed, the will and its contents are available for viewing by the public.

Sound Legal Representation from Our Experienced Medina Wills & Trusts Lawyer

The law offices of Erb Legal LLC can advise a person about how a trust might help in a particular situation. They can also assist in the creation of a trust instrument that conforms to all legislative requirements so as to provide the protections and safeguards authorized by law.

Contact us for a free consultation by calling (330) 446-3606. We serve clients in Medina County, Wayne County, and Summit County.