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OHIO LEGAL INFORMATION
Last Will and Testament Statutes
Selected Ohio Statutes
- 1337.09 Durable power of attorney.
(A) Whenever a principal designates another as attorney in fact by a power of attorney in writing and the writing contains the words "This power of attorney shall not be affected by disability of the principal," "this power of attorney shall not be affected by disability of the principal or lapse of time," or words of similar import, the authority of the attorney in fact is exercisable by the attorney in fact as provided in the written instrument notwithstanding the later disability, incapacity, or adjudged incompetency of the principal and, unless it states a time of termination, notwithstanding the lapse of time since the execution of the instrument.
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- 1337.092 Personal liability.
(A) If an attorney in fact enters into a contract in the representative capacity of the attorney in fact, if the contract is within the authority of the attorney in fact, and if the attorney in fact discloses in the contract that it is being entered into in the representative capacity of the attorney in fact, the attorney in fact is not personally liable on the contract, unless the contract otherwise specifies. If the words or initialism "attorney in fact," "as attorney in fact," "AIF," "power of attorney," "POA," or any other word or words or initialism indicating representative capacity as an attorney in fact are included in a contract following the name or signature of an attorney in fact, the inclusion is sufficient disclosure for purposes of this division that the contract is being entered into in the attorney in fact’s representative capacity as attorney in fact.
(B) An attorney in fact is not personally liable for a debt of the attorney in fact's principal, unless one or more of the following applies:
- The attorney in fact agrees to be personally responsible for the debt.
- The debt was incurred for the support of the principal, and the attorney in fact is liable for that debt because of another legal relationship that gives rise to or results in a duty of support relative to the principal.
- The negligence of the attorney in fact gave rise to or resulted in the debt.
- An act of the attorney in fact that was beyond the attorney in fact’s authority gave rise to or resulted in the debt.
- An agreement to assist in the recovery of funds under section 169.13 of the Revised Code was the subject of the power of attorney that gave rise to or resulted in the debt.
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Link to the Ohio Statutes online which contain the portion of the Probate Code dealing with last wills, see Chapter 2107.
Last Will information from the Ohio Bar Association
American Bar Association Guide to Wills and Estates
American Bar Association, Estate Planning
Selected Ohio Statutes
- § 2107.02 Who may make will. A person of the age of eighteen years, or over, [of] sound mind and memory, and not under restraint[,] may make a will.
- § 2107.03 Method of making will. Except oral wills, every last will and testament shall be in writing, but may be handwritten or typewritten. Such will shall be signed at the end by the party making it, or by some other person in such party's presence and at his express direction, and be attested and subscribed in the presence of such party, by two or more competent witnesses, who saw the testator subscribe, or heard him acknowledge his signature.
- § 2107.04 Agreement to make a will. No agreement to make a will or to make a devise or bequest by will shall be enforceable unless it is in writing. Such agreement must be signed by the maker or by some other person at such maker's express direction. If signed by a person other than such maker, the instrument must be subscribed by two or more competent witnesses who heard such maker acknowledge that it was signed at his direction.
- § 2107.05 Incorporation by reference. An existing document, book, record, or memorandum may be incorporated in a will by reference, if referred to as being in existence at the time the will is executed. Such document, book, record, or memorandum shall be deposited in the probate court when the will is probated or within thirty days thereafter, unless the court grants an extension of time for good cause shown. A copy may be substituted for the original document, book, record, or memorandum if such copy is certified to be correct by a person authorized to take acknowledgments on deeds.
- § 2107.06 Age requirement for witnessing will. No person under eighteen years of age shall witness a will executed pursuant to section 2107.03 of the Revised Code or an agreement to make a will or to make a devise or bequest by will pursuant to section 2107.04 of the Revised Code.
- § 2107.07 Deposit of will. A will may be deposited by the maker, or by some person for the maker, in the office of the judge of the probate court in the county in which the testator lives. Such will shall be safely kept until delivered or disposed of as provided by section 2107.08 of the Revised Code. The judge, on being paid the fee of one dollar, shall receive, keep, and give a certificate of deposit for such will.
Every will which is to be deposited shall be enclosed in a sealed wrapper, which shall be indorsed with the name of the testator. The judge shall indorse thereon the date of delivery and the person by whom such will was delivered. The wrapper may be indorsed with the name of a person to whom it is to be delivered after the death of the testator. Such will shall not be opened or read until delivered to a person entitled to receive it, until the maker petitions the probate court for a declaratory judgment of the validity of the will pursuant to section 2107.081 [2107.08.1] of the Revised Code, or until otherwise disposed of as provided in section 2107.08 of the Revised Code.
- § 2107.15 Witness a devisee or legatee. If a devise or bequest is made to a person who is one of only two witnesses to a will, the devise or bequest is void. The witness shall then be competent to testify to the execution of the will, as if the devise or bequest 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, he takes so much of that share that does not exceed the bequest or devise to him. The devisees and legatees shall contribute for that purpose as for an absent or afterborn child under section 2107.34 of the Revised Code.
- § 2107.33 Revocation of will.
(A) A will shall be revoked in the following manners:
- . By the testator by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
- . By some person, at the request of the testator and in the testator's presence, by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
- . By some person tearing, canceling, obliterating, or destroying it pursuant to the testator's express written direction;
- . By some other written will or codicil, executed as prescribed by this chapter;
- . By some other writing that is signed, attested, and subscribed in the manner provided by this chapter.
(B) A will that has been declared valid and is in the possession of a probate judge also may be revoked according to division (C) of section 2107.084 [2107.08.4] of the Revised Code.
(C) If a testator removes a will that has been declared valid and is in the possession of a probate judge pursuant to section 2107.084 [2107.08.4] of the Revised Code from the possession of the judge, the declaration of validity that was rendered no longer has any effect.
(D) If after executing a will, a testator is divorced, obtains a dissolution of marriage, has the testator's marriage annulled, or, upon actual separation from the testator's spouse, enters into a separation agreement pursuant to which the parties intend to fully and finally settle their prospective property rights in the property of the other, whether by expected inheritance or otherwise, any disposition or appointment of property made by the will to the former spouse or to a trust with powers created by or available to the former spouse, any provision in the will conferring a general or special power of appointment on the former spouse, and any nomination in the will of the former spouse as executor, trustee, or guardian shall be revoked unless the will expressly provides otherwise.
(E) Property prevented from passing to a former spouse or to a trust with powers created by or available to the former spouse because of revocation by this section shall pass as if the former spouse failed to survive the decedent, and other provisions conferring some power or office on the former spouse shall be interpreted as if the spouse failed to survive the decedent. If provisions are revoked solely by this section, they shall be deemed to be revived by the testator's remarriage with the former spouse or upon the termination of a separation agreement executed by them.
(F) A bond, agreement, or covenant made by a testator, for a valuable consideration, to convey property previously devised or bequeathed in a will does not revoke the devise or bequest. The property passes by the devise or bequest, subject to the remedies on the bond, agreement, or covenant, for a specific performance or otherwise, against the devisees or legatees, that might be had by law against the heirs of the testator, or the testator's next of kin, if the property had descended to them.
(G) A testator's revocation of a will shall be valid only if the testator, at the time of the revocation, has the same capacity as the law requires for the execution of a will.
(H) As used in this section:
- "Trust with powers created by or available to the former spouse" means a trust that is revocable by the former spouse, with respect to which the former spouse has a power of withdrawal, or with respect to which the former spouse may take a distribution that is not subject to an ascertainable standard but does not mean a trust in which those powers of the former spouse are revoked by section 1339.62 of the Revised Code or similar provisions in the law of another state.
- "Ascertainable standard" means a standard that is related to a trust beneficiary's health, maintenance, support, or education.
- § 2107.34 Afterborn or pretermitted heirs. If, after making a last will and testament, a testator has a child born alive, or adopts a child, or designates an heir in the manner provided by section 2105.15 of the Revised Code, or if a child or designated heir who is absent and reported to be dead proves to be alive, and no provision has been made in such will or by settlement for such pretermitted child or heir, or for the issue thereof, the will shall not be revoked; but unless it appears by such will that it was the intention of the testator to disinherit such pretermitted child or heir, the devises and legacies granted by such will, except those to a surviving spouse, shall be abated proportionately, or in such other manner as is necessary to give effect to the intention of the testator as shown by the will, so that such pretermitted child or heir will receive a share equal to that which such person would have been entitled to receive out of the estate if such testator had died intestate with no surviving spouse, owning only that portion of the testator's estate not devised or bequeathed to or for the use and benefit of a surviving spouse. If such child or heir dies prior to the death of the testator, the issue of such deceased child or heir shall receive the share the parent would have received if living.
If such pretermitted child or heir supposed to be dead at the time of executing the will has lineal descendants, provision for whom is made by the testator, the other legatees and devisees need not contribute, but such pretermitted child or heir shall take the provision made for the pretermitted child's or heir's lineal descendants or such part of it as, in the opinion of the probate judge, may be equitable. In settling the claim of a pretermitted child or heir, any portion of the testator's estate received by a party interested, by way of advancement, is a portion of the estate and shall be charged to the party who has received it.
Though measured by Chapter 2105. of the Revised Code, the share taken by a pretermitted child or heir shall be considered as a testate succession. This section does not prejudice the right of any fiduciary to act under any power given by the will, nor shall the title of innocent purchasers for value of any of the property of the testator's estate be affected by any right given by this section to a pretermitted child or heir.
- § 2107.37 Subsequent marriage. A will executed by an unmarried person is not revoked by a subsequent marriage.
- § 2107.60 Oral will. An oral will, made in the last sickness, shall be valid in respect to personal estate if reduced to writing and subscribed by two competent disinterested witnesses within ten days after the speaking of the testamentary words. Such witnesses must prove that the testator was of sound mind and memory, not under restraint, and that he called upon some person present at the time the testamentary words were spoken to bear testimony to such disposition as his will.
Library of Informational Legal Articles
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