Maybe you think your estate is too small to need a will. Maybe you've just never gotten around to it. Or maybe the decisions are just too hard to make, so you keep putting it off. We've heard lots of reasons for people not putting pen to paper and making a will, but none of them are good enough to risk dying without making your wishes known. The process of settling your estate and distributing your assets when you don't have a will is known as intestate succession in Ohio, and—trust us—it's something you want to avoid putting your family through.
Who Gets What When You Don't Have a Will
Ohio, like every other state, has laws that dictate how property and assets are distributed when someone dies without a will, otherwise known as dying intestate. According to Ohio's intestate laws, property is distributed as follows:
- If there is a surviving spouse, the entire estate will go to him or her unless there are children who are not the natural children of the surviving spouse, then the estate gets distributed differently.
- If there is no spouse, but there are children, the estate will be divided equally among them.
- If there is no spouse and no children, the deceased's parents will inherit.
- More distant relatives—aunts, nephews, cousins of any degree, etc.—are next in line if the deceased had no spouse, children, or parents.
- If the court cannot locate any living relatives, the state of Ohio will inherit the entire estate.
Now, for many people, this is likely the order in which you would bequeath your assets anyway, but having a will ensures that it happens exactly how you want it to happen. And for those people who would choose a life partner or close friend to inherit over a family member, those wishes would not be known or honored by the court. Certainly, even if you have no close friends and no living family members, your choice would not be to leave your assets to the state of Ohio. With a will, you could choose a charitable organization or a distant relative. This is why it is so important to work with a lawyer to draft a will TODAY!
What Is the Process of Intestate Succession?
If you are the loved one of a person who died without a will, you need to be familiar with how the property will be distributed. The first thing to understand is that just because you step up to represent the estate, that doesn't mean you are entitled to inherit anything. This is a common misconception. A caring, generous niece or close friend will come forward to represent the estate, deal with all the headaches, delays, angry family members—sometimes even pay for things out of pocket—and she gets nothing in the end. That's because, without a will, the state follows the rules we outlined above, regardless of who is doing the work.
That said, someone will need to serve as the administrator of the estate. When the deceased has not named an administrator, the state will accept applications and appoint one. The administrator can then file with the court to open probate. Also, a family tree will have to be made to determine who is eligible to inherit. After that, the succession process generally follows the following steps:
- Determine the value of the estate. If the estate is worth less than $35,000 (or $100,000 for a surviving spouse), the administrator can file for a release of administration, meaning the probate process will be much simpler and quicker. If the estate needs full administration, the process will be much slower, as it will have to take the following steps at a minimum.
- Determine which assets need to be probated. Accounts or policies that name beneficiaries or have co-owners, property held in trust, and assets with a transfer-on-death clause will pass directly to the named beneficiary and do not have to be probated.
- Identify the estate's debts. Some bills—such as mortgages and car loans—will need to be paid by the administrator in order to keep those assets eligible for inheritance. Other bills, such as credit card debt and utilities, do not need to be paid.
- Do an inventory and appraisal of assets. This is the process of informing the court of all of the property and assets owned by the estate.
- File a final accounting. Once assets are distributed, a final accounting will have to be filed with the probate court to close the estate.
As you can see, the estate administrator could have a big job ahead of them. Whether the estate needs full administration or not, it is a good idea to contact a probate attorney to take on some of this burden. Things can go wrong at each step of the process, so it is in the estate's best interest to have legal representation.
Contact Littlejohn Law if you have any questions about intestate succession or probating an estate. You can also request a copy of our free book, What Comes Next? A Loved One's Guide to Maneuvering the Probate Process.