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Who Can Execute a Will

Posted in Wills & Estates. Tuesday, Feb 09th, 2016

Many people understand the importance of wills. Wills direct how a deceased person’s property shall be distributed after his or her death. Given the importance of having a will, many people plan to create wills during their lifetimes. However, not everyone consults with a probate attorney to create their will. They may attempt to make a will simply by getting a piece of paper and scribbling some notes about who gets their car or their savings or they might express their intentions orally.

While that person might have intended to create a will to divide his or her assets, whether that will is valid depends on the requirements of the law, which can vary depending on how the will is made.

Handwritten Wills

According to Ohio Law, a will may be handwritten. This means that a will that was scribbled down on a piece of paper, even a napkin, could potentially be valid. However, there are other requirements that must be satisfied in order for the hand-written document to be operate as a valid will. The will must be signed by the person making it, known as the testator, or by someone in the testator’s “conscious presence,” meaning that he or she does so at the direction of the testator. In addition to the testator’s signature, the creation of the will must be witnessed by two competent witnesses other than the testator him- or herself. Those witnesses must be at least eighteen years of age.

This means that a person who wishes to make a will by writing one him or herself could fail to do so if the handwritten will is not signed or if there are less than two competent witnesses to the will’s creation.

Oral Wills

Sometimes, rather than handwriting a will, a person may declare aloud his or her intention to leave his or her property to a specific person. Under Ohio law, oral wills can be valid, but only under very limited circumstances. Oral wills are only valid if made by a testator during his or her “last sickness.” This means that a testator must be facing actual death in order to create a valid oral will; an oral will made while a testator was in perfect health will not suffice. Additionally, two competent witnesses who heard the oral declaration must then, within ten days, create a writing of the oral will and are required to testify to the testator’s sound mind and memory and freedom from restraint.

There are limits to who can serve as a witness. Witnesses must be disinterested and cannot be people who would stand to receive any of the testator’s property through the oral will. If the testator tells a friend or relative that he or she will leave them certain property, that friend or relative may no longer serve as a witness to the will because he or she is no longer considered to be “disinterested.” In this type of situation, there must be at least two witnesses to the oral will who are not bequeathed any part of the estate.

Probate Attorneys in Columbus, Ohio

Though Ohio law does recognize wills created independently, it is important to consult with a lawyer if considering writing a will and planning your estate. In addition to understanding the formalities of a will that will ensure that it is validly executed, attorneys can help you consider your assets, your wishes, and how to ensure that your intentions are carried out.

If you have questions about the validity of a will, contact a Columbus probate litigation attorney at the Law Office of Mike Gertner today.