According to Ohio Revised Code § 2107.03, with exception to oral wills, a will is valid if it is:
- In writing (including handwritten or typewritten)
- Signed at the end by the testator (i.e. the person creating the will) or at the testator’s direction by someone in the testator’s conscious presence
- Attested and subscribed by two or more witnesses in the conscious presence of the testator (i.e. they must see the testator subscribe or hear the testator acknowledge their signature)
Under this revised code, conscious presence is defined as being “within the range of any of the testator’s senses, excluding the sense of sight or sound that is sensed by telephonic, electronic, or other distant communication.” This simply means that conscious presence does not include seeing or hearing over the phone or via a video call.
For a handwritten will to be valid, they must meet the aforementioned requirements including being witnessed by two or more people. Witnesses must be 18 years of age or older (Ohio Revised Code § 2107.06).
Why Holographic Wills Are Not Always a Good Idea
Holographic wills can present challenges as they are less reliable than other types of wills, because:
- The original intent is not always clear. While you may know what you mean by certain abbreviations or details you include, those reviewing your will may misinterpret or not understand what you meant to say. A holographic will can also be ambiguous in certain situations; for instance, a testator may leave everything to “My Darling,” but he refers to both his wife and his daughter with this endearment.
- The entire estate is not dispensed. Testators may not remember to include details about what to do with all of their assets. Attorneys-drafted wills will likely often include a residuary clause, which leaves any assets not included in the will to a specific person.
- The will is not updated. While certain assets may be your property when you write the will, testators may not be the owners of certain property or assets, that they included in their will, when they die. In this case, beneficiaries may not inherit anything.
- An executor is not named. Appointing someone to carry out your wishes is important. However, some testators just include assets and beneficiaries in holographic wills.
- Other important considerations are neglected. If you have time, you should consult with an attorney rather than draft a holographic will. Estate attorneys have a firm understanding of the laws as well as how to advise specific clients, and they can ensure you include all the necessary information (i.e. executors, guardians, clauses, trusts for beneficiaries, etc.).
Do You Need a Will At All?
Under Ohio Revised Statue § 2107.02, any person 18 years of age or older can make a will if they are:
- Of sound mind
- Not under undue influence
You can create a will to protect your family, estate, and wishes. Many people use wills to:
- Name a guardian to care for your underage children or property you’ve left your children
- Name your executor (who carries out the terms of your will)
- Leave your property or certain assets to specific individuals and/or organizations
It is also important to note that you can change your will as often as you wish, and after a change in circumstances (i.e. getting married, having children, getting divorced, obtaining new property, etc.), you should update your will. However, you should consult with an experienced attorney as they understand how
What Happen If You Don’t Have a Will When You Die?
When a person dies without having created a valid will, they are called an intestate person. Assets that would have been included in your will go to your closest living relative. Who inherits your estate/assets depends on what family survives you, specifically:
- Your spouse will inherit if there are no living descendants or living parents. They can also inherit if you are also survived by descendants of you and that spouse.
- Children inherit if you are not survived by a spouse. They can also inherit with a surviving spouse if they are children from a previous spouse/another partner.
- Parents will inherit if you are not survived by a spouse or any descendants.
- Siblings will inherit if you are not survived by a spouse, descendants, or parents.
You can learn more about intestate laws by reviewing Ohio Revised Code §§ 2105.01-2105.39. However, we strongly encourage you to draft a will and ensure your wishes are honored after your death.
Do I Need a Lawyer to Draft My Will?
At Bridges, Jillisky, Weller & Gullifer, LLC, our attorneys are devoted to helping clients navigate their legal matters with as little stress as possible. While you can draft a will yourself or online, it is in your best interest to work with an experienced estate planning attorney. As mentioned, wills should include a lot of specific information, and drafting a will is more legally complex than you may think.
Our estate planning attorney, Kimberly Cutler, is known for being compassionate, responsive, and knowledgeable, and she is equipped to help you ensure your affairs are in order. To schedule a free, initial case consultation, reach out to our legal team today at (937) 403-9033 or online.