Do I Need A Will?

It’s like that old saying (sometimes attributed to Benjamin Franklin)… there are only two things certain in life: death and taxes. Everybody dies, and if you can think about that fact of life without any fear or emotion it makes a ton of sense to be prepared for death. Like the saying goes, it is one thing that we can be certain will happen.

In the most general of terms, a will is a person’s instructions, left to her loved ones, which says how she wants her assets and property distributed when she dies. The law requires certain formalities to be followed, but for the most part a person can distribute their property however they like.

But back to the title question: do you need a will? As an attorney, I will always say yes, because I believe that the benefits truly outweigh the costs. But, to be technical, no, you do not need a will. Ohio, like every state, recognizes that some folks will die without a will. Unlike paying your taxes and carrying health insurance, the law does not command any of us to have a will.

Ohio has a system in place to deal with the situation when a person dies without a will (when they die “intestate”). When a person dies intestate, their estate will be distributed through a process called intestate succession. This is essentially a structured process by which a person’s assets are distributed. It is done according to statute – etched in stone until the Ohio legislature chooses to change it. And, as you might imagine, the legislature’s system is not to the satisfaction of everybody.

More or less, Ohio’s intestate succession statute is fair. For example, if a person dies intestate and has no surviving spouse, the entire estate is distributed to the decedent’s children (the “decedent” is the person who has died). Or, if the decedent never had any children but has a surviving spouse, then the whole estate goes to the spouse. But, things can get complicated pretty quickly. Another example: If a person dies while in their second marriage and has a child from their first marriage, then the decedent’s current spouse will get the first $20,000 of the estate plus one half of the remaining estate with the other half of the remaining estate going to the decedent’s child. Complications aside, what matters is that if a person dies without a will, then the state decides who inherits what.And, there are situations where the state inherits a person’s estate (what many consider to be an extremely undesirable result).

A will allows a person to decide exactly how to distribute their estate and to preclude the possibility that the state will take anything. With a few restrictions, a will allows you to leave your estate to whomever you want and in whatever proportions. Perhaps you want to include a brother or sister in your inheritance. Maybe you have friends that you want to have certain belongings. Maybe you think somebody in your family is a deadbeat and would squander their inheritance. Well, leave them out! Perhaps you want to donate some of your estate to a charity. The more customized a will gets, the more complicated it becomes, but even very simple wills can allow a person to have their say instead of letting the state speak for them once they’re gone.

You might be thinking: “Shouldn’t I wait until later in life to plan my estate and write a will?” I say the answer is no. Having a will in place early is smart because doing so recognizes the unpredictability of life. And, wills can be changed! Of course, as life twists and turns new people will come into your life, and (hopefully) new fortunes. Wills can be revoked and updated as a person so chooses (again, with certain formalities adhered to). So, it is smart to have a will in place early (even if it is quite simple) that you update as you journey through life.