To make a valid will in Ohio the following requirements must be met:
The Testator (the person who makes the will)
– Must be over 18
– Must be of sound mind and memory
– Must not be under restraint
– Must be written (can be handwritten or typewritten)
– Must be signed at the end by the testator or by some other person in the testator’s conscious presence and at the testator’s express direction
– Must be witnessed in the conscious presence of the testator by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator’s signature
– Must be 18 years or older
What Does “Conscious Presence” Of The Testator Mean?
Section 2107.03 of the Ohio Revised Code defines that “conscious presence” means:
For purposes of this section, “conscious presence” means 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.
What Does It Mean To Be “Of Sound Mind and Memory” To Make A Valid Will Under Ohio Law?
To be “of sound mind and memory” and competent to make a valid will under Ohio law means that the testator can:
- Understand the nature of the business in which he is engaged.
- Comprehend generally the nature and extent of his property.
- Hold in his mind the names and identity of those who have natural claims upon his bounty.
- Appreciate his relation to members of his family.
We have written about the capacity of a testator and also the concept of undue influence in our article on How to Contest A Will in Ohio.
Can A Beneficiary Witness A Will In Ohio?
A beneficiary should not witness a will in Ohio. If a devise is made to a person who is one of only two witnesses to the will, the devise or bequest to that person is void. The witness would still be competent to testify to the execution of the will, as if the devise had not been made.
If the witness would have been entitled to a share of the testator’s estate in case the will was not established, the witness takes so much of that share that does not exceed the bequest or devise to the witness. Said another way, the witness would take their bequest under the will up to the value of their intestate share. Ohio Revised Code section 2107.15.
Bottom line, having a beneficiary witness a will in Ohio is a bad idea, as it ultimately defeats the testator’s intent. If a testator insists on having a beneficiary witness, it is a good idea to have additional witnesses present so that the beneficiary is not one of the required witnesses to make the will valid under Ohio law.
Does An Ohio Will Have To Be Notarized?
No, to make a valid will in Ohio there is no requirement that the will is notarized.
Deposit Of A Will In Ohio Probate Court
Ohio allows a testator, or someone on the testator’s behalf, to deposit a will with the office of the judge of the probate court in the county where the testator lives, before or after the death. Ohio Revised Statutes section 2107.07.
Upon payment of a $25 fee, the judge receives and keeps the will, and gives a certificate of deposit for the will. The will is kept until delivered or disposed of under section 2107.08 of the Ohio Revised Code, which states
During the lifetime of a testator, the testator’s will, deposited according to section 2107.07 of the Revised Code, shall be delivered only to the testator, to some person authorized by the testator by a written order, or to a probate court for a determination of its validity when the testator so requests. After the testator’s death, the will shall be delivered to the person named in the indorsement on the envelope of the will, if there is a person named who demands it. If the testator has filed a complaint in the probate court for a judgment declaring the validity of the will pursuant to section 5817.02 of the Revised Code and a judgment is rendered pursuant to division (A)(1) of section 5817.10 of the Revised Code declaring the will valid, the judge of the court who rendered the judgment shall deliver the will to the proper probate court as determined under section 2107.11 of the Revised Code, upon the death of the testator, for probate.
If no person named in the indorsement demands the will and it is not one that has been declared valid pursuant to division (A)(1) of section 5817.10 of the Revised Code, it shall be publicly opened in the probate court within one month after notice of the testator’s death and retained in the office of the probate judge until offered for probate. If the jurisdiction belongs to any other probate court, the will shall be delivered to the person entitled to its custody, to be presented for probate in the other court. If the probate judge who opens the will has jurisdiction of it, the probate judge immediately shall give notice of its existence to the executor named in the will or, if any, to the persons holding a power to nominate an executor as described in section 2107.65 of the Revised Code, or, if it is the case, to the executor named in the will and to the persons holding a power to nominate a coexecutor as described in that section. If no executor is named and no persons hold a power to nominate an executor as described in that section, the probate judge shall give notice to other persons immediately interested.