What is Intestate Succession and how does it work when a loved one passes away?

Intestate Succession Laws

What is Intestate Succession and how does it work when a loved one passes away?

Intestate Succession is a fancy word that means that somebody died without a Will.  The Ohio revised code lays out a process to determine who is supposed to inherit what is in the estate.  The first person that they identify who should inherit the estate is a surviving spouse.  If the deceased was married, the surviving spouse inherits everything.  If they have children, then the estate would go to surviving spouse.  If that person is deceased, then it will go to their children.

Here is where this gets tricky.

If the surviving spouse is not the natural parent of one or more of the children, then the surviving spouse takes, and the children take.

Now if the surviving spouse is the natural parent of one of the children, but not all of the children, then under the law, the surviving spouse is entitled to a larger amount, but then he or she has to split the remainder of the estate with the children.

If there's no surviving spouse, and no children, then they go to the parents of the deceased, equally.  If there are no parents of the deceased, then the law looks to see if there are any siblings of the deceased.

Now, here is where this gets tricky.

Under the revised code, if there is no surviving meaning no spouse, no children, or their lineal descendants, it goes to the brothers or sisters of the deceased.  That means the estate goes to the children or the children's lineal descendants.  With no parent surviving, it goes to the brothers or sisters.

Example:

From time to time, we get clients whose siblings passed away years ago.  Nobody has opened an estate and now they want to open up an estate.

Typically, what we must do is build a family tree.  We must identify if there is a surviving spouse; if there were any children; if the children had any lineal descendants before we go up to the parents.  

What if someone passes away, they had a child but never legally adopted the child?

Under the law, if you are not legally adopted, but you can show that the parent-child relationship has been created, or you can show that parentage has been established by way of the probate court, then you can inherit.

Case example:

A brother and sister were not born of the marriage, and so we call that an illegitimate child. As a result of that, when the father passed away, there was an issue to determine who should inherit.  Now under the eyes of the law, the father would have had to establish parentage.  He would have had to establish the parent/child relationship with the son and/or the daughter for them to inherit.  If the parent/child relationship hasn't been established, then under the law, the child cannot inherit.

Exceptions to the rule:

If you marry the child’s parent, adopt the child, or designate them as an heir at law, then that child or children can inherit.

Be safe:

Get a Will.  Get a Trust.  This will eliminate Intestate Succession and takes it out of the probate courts' realm for them to decide who gets what.  Make sure you identify in a Will and you give a guideline for how you want your assets to be transferred, who you want them to be transferred to, and what they'll receive.

We at Littlejohn Law want to help guide you in your Will and Estate process.  We are here to answer any questions you may have.  Contact Littlejohn Law at 740-346-2899 for a complimentary needs assessment so that we can help you get your affairs in order.

Littlejohn Law, LLC
The Real Estate and Probate Law Firm
352 Main Street
Wintersville, OH  43953
www.littlejohnlawllc.com

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“Remember, where there's a Will, there's a way, and where there's no Will, then there's probate”