Mom's will - is it valid?

[mlrand]

What is the name of your state? Ohio
My 86 year old mother moved to Ohio from North Carolina about six years ago and we are her primary source of support. Her will from about 20 years ago has my brother as the executor but she now wants my husband to be the executor since we are much closer (2 miles vs. 100 miles). She wrote a note on her will stating that she wants my husband to be the executor and she feels that this is legal. This note is not notarized and the will was written in North Carolina a long time ago. My husband is concerned that this would not be sufficient to carry out the executors duties and that it could be contested (we are not expecting any family trouble). Is this a valid will or is it time to get a new will in Ohio? Thanks!

 

[adjusterjack]

The requirement of two witnesses to a will is likely the same requirement for a codicil (amendment). Although the NC statute doesn't specify that, I found a codicil form that does specify two witnesses.

North Carolina Wills Laws :: Chapter 31 - Wills :: 2020 North Carolina General Statutes :: US Codes and Statutes :: US Law :: Justia

North Carolina Codicil To Will Form - Free Printable Legal Forms

Here's the Ohio statute. Use the keyword search for "codicil" and you'll find, in a roundabout way, that a codicil also requires two witnesses just like the will.

Chapter 2107 - Ohio Revised Code | Ohio Laws

I'd say it's definitely time for her to make a new will in Ohio, and not just for validity sake.

 

[LdiJ]

What is the name of your state? Ohio
My 86 year old mother moved to Ohio from North Carolina about six years ago and we are her primary source of support. Her will from about 20 years ago has my brother as the executor but she now wants my husband to be the executor since we are much closer (2 miles vs. 100 miles). She wrote a note on her will stating that she wants my husband to be the executor and she feels that this is legal. This note is not notarized and the will was written in North Carolina a long time ago. My husband is concerned that this would not be sufficient to carry out the executors duties and that it could be contested (we are not expecting any family trouble). Is this a valid will or is it time to get a new will in Ohio? Thanks!

She probably needs a new will or at least a codicil to the one that she has now, however, if you don't expect any family trouble it may not end up being a problem anyway. It is not completely out of the norm for a judge to appoint someone other than the executor named in the will, as the executor to an estate.

You could discuss it with your brother now, to see how he feels about it. If you are your mother's primary support, then does she even have any significant assets to worry about?

 

[mlrand]

Thanks LdiJ. My mom does have assets - we are not supporting her financially. I am a nurse so I monitor her health and transport her frequently to doctors appointments, meals as necessary, etc.

 

[LdiJ]

Thanks LdiJ. My mom does have assets - we are not supporting her financially. I am a nurse so I monitor her health and transport her frequently to doctors appointments, meals as necessary, etc.

Where are your mom's assets located? In Ohio or in North Carolina, or both?

 

[mlrand]

Where are your mom's assets located? In Ohio or in North Carolina, or both?

Her home is in Ohio. She also has a savings account, IRA & other stocks.

 

[adjusterjack]

Simple solution:

Ohio allows for a beneficiary deed (transfer on death) for the home (assuming she owns it). Avoids probate. Avoids hassle between siblings.

Section 5302.23 - Ohio Revised Code | Ohio Laws

Savings accounts, IRAs, and investment accounts can all have beneficiaries named. Also to avoid probate of those items.

 

[mlrand]

Simple solution:

Ohio allows for a beneficiary deed (transfer on death) for the home (assuming she owns it). Avoids probate. Avoids hassle between siblings.

Section 5302.23 - Ohio Revised Code | Ohio Laws

Savings accounts, IRAs, and investment accounts can all have beneficiaries named. Also to avoid probate of those items.

That's an option but she has four children so the house would have to be sold and I assume that would be my husband's responsibility.

 

[adjusterjack]

she has four children so the house would have to be sold

Then she should specify in her will that the executor (representative of the estate) has sole authority to sell the house out of the estate and divide the proceeds. It is never a good idea to leave a house jointly to all the heirs. Yet people do just that and we get to read the horror stories about hostile siblings fighting over it. The same siblings who probably, long ago, said "we trust each other, can't happen to us." And then it does.

The other items can certainly have beneficiaries and the banks can just issue separate checks.

Except for the IRA. You and your husband should study IRS 590-B Page 6 as inherited IRAs are complicated. It might be best to leave it to one heir and kick up the other amounts for the other three.

2020 Publication 590-B (irs.gov)

Revisions to the 2020 Publication 590-B | Internal Revenue Service (irs.gov)

In a month or so the 2021 edition is likely to clarify all that.

Best for her to engage in a thorough review of her assets and plan ahead. She could conceivable be around for another 10+ years and things change and need to be brought up to date periodically.

 

[LdiJ]

Then she should specify in her will that the executor (representative of the estate) has sole authority to sell the house out of the estate and divide the proceeds. It is never a good idea to leave a house jointly to all the heirs. Yet people do just that and we get to read the horror stories about hostile siblings fighting over it. The same siblings who probably, long ago, said "we trust each other, can't happen to us." And then it does.

The other items can certainly have beneficiaries and the banks can just issue separate checks.

Except for the IRA. You and your husband should study IRS 590-B Page 6 as inherited IRAs are complicated. It might be best to leave it to one heir and kick up the other amounts for the other three.

2020 Publication 590-B (irs.gov)

Revisions to the 2020 Publication 590-B | Internal Revenue Service (irs.gov)

In a month or so the 2021 edition is likely to clarify all that.

Best for her to engage in a thorough review of her assets and plan ahead. She could conceivable be around for another 10+ years and things change and need to be brought up to date periodically.

I disagree about the bolded (the IRA). The IRA will get split by the company holding the IRA and they will each handle the IRA based on their individual situations/decisions. IRSs are taxable income so it is MUCH better to have designated beneficiaries who will be responsible for their own tax situation. Plus, with your advice the others would all get stepped up basis to fair market value while only the single designated beneficiary for the IRA would have to pay tax on their share.

As far as the house is concerned whether or not a TOD deed (Transfer on death) would be better, with each of them getting their own share transferred to them is better or worse, depends on a few other factors as well. Cost of probate is one of them.

It is important however to note that mom's estate will need to deal with her final expenses, so if absolutely everything has beneficiaries or is split equally at death, then everybody has to kick in to cover the final expenses, and that can be problematic.

My mom was adamant that none of her estate was to go through probate so we are all equal beneficiaries on everything and TOD sharers of the house.

She did however leave one bank account, with enough money it in to cover her final expenses, that only has me as a joint account holder. I am supposed to use that money to cover her final expenses, and I will.

 

[Ohiogal]

As an attorney in Ohio, what they all said..

 

[TrustUser]

thought i would add my 2 cents, and suggest you think about a trust

 

[zddoodah]

She wrote a note on her will stating that she wants my husband to be the executor and she feels that this is legal.

Feels?

This note is not notarized

Notarization of a will (or amendment/codicil) is not necessary. However, witnesses and witness signatures are necessary.

My husband is concerned that this would not be sufficient to carry out the executors duties and that it could be contested (we are not expecting any family trouble).

As you have described it, the handwritten note may not be valid to amend the will. Someone would need to seek an opinion from an Ohio attorney about that. That doesn't necessarily mean, however, that, after your mother dies, a court wouldn't appoint your husband to be executor.

Is this a valid will or is it time to get a new will in Ohio?

No one here can opine intelligently about the validity of a will we haven't see. That said, if we assume that the will was valid under North Carolina law at the time it was made, then it's still valid now. The issue isn't the validity of the will. Rather, the issue is whether the handwritten note will constitute a valid modification of the will. If your mother is concerned about this issue -- or, if others are concerned and convince your mother to do so -- she should consult with an estate planning lawyer near where she lives. Unless she wants to make other changes, there is likely no need to make a new will.