Ohio Estate Planning Considerations
Ohio is a Common Law State, which means the rules governing the ownership, division, and inheritance of income and property acquired by a husband or wife during their marriage hold that subject to various qualifications, each spouse owns and has complete control over their own her income and property.
Last Will and Testament
The minimum age of a person competent to make a will is 18.
The number of witnesses necessary to execute a will is two.
Ohio Transfers to Minors Act
The custodial arrangement terminates when:
- The minor child reaches age 21. Note: the property can be conveyed earlier (between the age of 18 and 21) if noted in terms of the trust.
- The minor child dies.
Dying without a Last Will, the Ohio Laws of Intestacy
The estate goes to the surviving spouse, as follows:
- If there are no children or lineal descendants, —100% of the estate
- If one or more children or their lineal descendants survive, and all the decedent’s children who survive or have surviving lineal descendants are also children of the surviving spouse, —100% of the estate
- If one child or the child’s lineal descendants survive and the spouse is not also the natural or adoptive parent—the first $20,000 plus 50% of the balance of the estate (the remainder goes to the child or the child’s lineal descendants, per stirpes)
- If more than one child or their lineal descendants survive and the spouse is the natural or adoptive parent of one, but not all, of the children—the first $60,000 plus one‐third of the balance of the estate (the remainder goes to the children equally, or to the lineal descendants of any deceased child, per stirpes)
- If more than one child or their lineal descendants survive and the spouse is the natural or adoptive parent of none of the children—the first $20,000 plus one‐third of the balance of the estate (the remainder goes to the children equally, or to the lineal descendants of any deceased child, per stirpes)
If there is no surviving spouse or child or lineal descendant:
- 100% to surviving parent or parents equally
If there is no surviving spouse, child or lineal descendant, or parent:
- 100% to siblings or lineal descendants, per stirpes
If none of the above:
- Intestacy laws outline further distribution steps to the level of grandparents, next of kin and stepchildren, and descendants. See RC §2105.06(H), (I), (J).
- If no legally described recipient can be found, estate assets go to the state of Ohio.
The specifics of Ohio’s living will laws are listed below.
2133.01 et seq. Modified Uniform Rights of the Terminally Ill Act
Specific Powers, Life-Prolonging Acts
Any medical procedure, treatment, intervention, or other measures that will serve principally to prolong the process of dying. The declarant may authorize withholding hydration and nutrition; cannot withdraw or withhold life-sustaining treatment from a pregnant patient unless it is believed to a reasonable degree of certainty that the fetus would not be born alive.
Legal Requirements for Valid Living Will
(1) Adult; (2) of sound mind; (3) signed by the declarant; (4) dated; (5) in the presence of 2 witnesses or a notary public who attests that principal is of sound mind and free from duress
Revocation of Living Will
Revocable at any time and in any manner; effective when expressed and communicated to a witness or physician
Validity from State-to-State
Effective if executed in another state in compliance with that law or substantial compliance with Ohio law
If Physician Unwilling to Follow Durable Power of Attorney
A physician may not prevent or unreasonably delay a transfer.
Immunity for Attending Physician
No civil, criminal, or professional liability for physician acting in good faith within the scope of their authority
Ohio follows the Uniform Fiduciary Access to Digital Assets Act to ensure that testators can retain control of their digital property and plan for its ultimate disposition.
Ohio does not impose an inheritance tax.
Ohio does not impose an estate tax.
Generation-Skipping Transfer Tax (GST Tax)
Ohio imposes a GST tax equal to the maximum credit allowed under IRC Sec. 2604 for paid state GST tax. However, the current federal tax code does not permit a credit for paid state GST tax. Therefore, there is no current GST tax.
Ohio does not impose a gift tax.