The 4 Major Pitfalls of Not Having a Last Will and Testament

There are four major downsides to not having a valid will upon death.

1. Inheritance

Without a valid will setting forth who will inherit your estate, ie. your house, money, prized coin collection, etc. the property will be distributed according to Ohio law and not your wishes.  Remember, if you want to be the one to decide who inherits your estate, you must have a valid will.  So what makes a valid will in Ohio? In a nutshell, it must be in writing, signed at the end by you, and signed by two competent witnesses who saw you sign your will.  Although it may be simple enough to execute a valid will, the content of your will is just as important so do see an attorney to assist you.  

2. Administrator vs. Executor

After you die, unless you have a trust in place, your estate will have to be administered under the supervision of the probate court.  In a will you have the opportunity to appoint someone you trust to administer your estate, called an Executor.  However, if you have not named an Executor, the probate court will appoint someone to administer your estate of the court’s own choosing, called an Administrator.  There are a number of reasons why an Executor is preferred over an Administrator.

a. First, as stated, you get to choose your Executor whereas Administrators are chosen by the court. 

b. Second, Executors and Administrators are entitled to compensation from the estate, so why not have a relative or close friend of your choosing receive the compensation.

c. Third, you have the opportunity to give your Executor flexibility and powers that an Administrator lacks, which can make the administration of your estate a lot cheaper and faster.  For example, you can give your Executor the power to determine the value of household items.  An Administrator, without this power, would have to have an appraisal done of all your household items (ie. furniture, clothes, jewelry, etc.) and get authority from the Court before distributing them to your heirs, whereas the Executor could simply have all your chosen heirs come to your home and divide everything up without an appraisal or court approval.

d. Fourth, you can request that an Executor serve without bond.  Whenever an Administrator is appointed by the Court, or an Executor who lacks this language in a Will, he is required to post a bond to secure the estate property from theft or mismanagement on the part of the Executor or Administrator.  A bond can be a good thing if you do not have complete trust in the Executor you are appointing.  However, if there are no trust issues, then a bond is simply an additional expense for the estate that should be avoided.

3. Family Harmony

While it is true that having a will is not a cure all for family strife, it can significantly help.  If you die without a surviving spouse, then your children will be on equal footing to act as administrators. Who will take the job? Who will receive your wedding ring or that family heirloom? Save your family the strife and hard feelings, put your wishes in your will.

4. Child Under 18

If you have a child under 18 years of age, and both parents are unable to care for the child, the Court will need to appoint a Guardian to care for them and any assets they inherit.  A will gives you the opportunity to make your wishes known regarding who would perform this very important job.  Would you want the Court making this decision for you?