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As attorneys, we tend to stress the need for a Last Will and Testament. Having a Will is a good investment. It's a fairly easy and relatively inexpensive process that ensures your wishes will be carried out after death.
We recognize, of course, that many people die without a Will. Writing a Will forces us to confront, in a very real way, the fact that, one day, we will no longer be here. It forces us to confront our own mortality. And that's something many people do not wish to do.
People also fear that writing a Will is expensive. In reality, more most people, having an attorney draw up a Will is a relatively inexpensive process that usually only takes a few hours time.
For various reasons, people often forego having a Will prepared which, in turn, means that many people in Ohio die intestate, which is a fancy way of saying that they died without a Will.
Maybe a family member recently died and you’re not sure if they have a Will. You’ve searched high and low – all through the house, where they kept important documents, you even checked with their bank to see if it was in a safe deposit box. But you’re not able to turn one up.
Maybe it’s your mother or father. Or maybe an aunt or uncle who never married, or never had children of their own, and it’s left to you to handle their affairs.
Dying without a Will is not uncommon and, of course, the law has evolved to be able to address this situation.
In Ohio, the estates of people who die without a Will are governed by R.C. 2105.06, the Ohio Revised Code section that spells out Ohio’s laws of intestacy – the laws that apply when someone dies without a Will. The intent behind the law is for property to be distributed logically, in a way the legislature believed most people would want their property to be distributed.
Of course, the law deals in generalities and may not address your specific situation. Additionally, by not naming an Executor of your estate you leave it up to the court to decide who to appoint as the Estate Administrator.
Once the probate process has been initiated, the court will appoint an administrator – usually a spouse or some other next of kin. Then the estate administration proceeds in the same basic way that it would if the decedent died with a Will.
Before we address the specific divisions of property, it is important to address one legal term - per stirpes - a Latin term that means each branch of the family receives an equal part of the estate. I like to think of it in terms of baskets. Each child gets an equal basket. If the child is still living, that child gets whatever is in the basket. If that child died but had children of his or her own, that child’s basket is split equally between the child’s children.
With that in mind, here is a chart that describes how Ohio’s laws of intestacy divide assets that are subject to probate:
If a person dies with:
|Children, but no spouse||Children inherit everything|
|A Spouse, but no children or parents||Spouse inherits everything|
|A Spouse, and children from the decedent and that spouse||Spouse inherits everything|
|A Spouse and 1 child from someone not that spouse||Spouse inherits first $20,000 of intestate property plus 1/2 of balance|
Everything else to their descendants
|A Spouse and more than one child, or descendants of those children||Spouse inherits the first $60,000 of intestate property plus 1/3 of the balance if the spouse is the natural or adoptive parent of at least one of the children.|
If the spouse is not the natural or adoptive parent of any of the children, then the Spouse inherits the first $20,000 of the intestate property plus 1/3 of the balance of the estate.
Everything else goes to the descendants, per stirpes.
|Parents but no spouse or descendants||Parents inherit everything|
|Siblings but no spouse, descendants, or parents||Siblings inherit everything|
It is also important to remember that not all assets are subject to probate. The the laws of intestacy only apply to property that is subject to the jurisdiction of the probate court. If your loved one had assets that transfer on death, such as a Transfer on Death Affidavit for real estate, or jointly owned bank or retirement accounts, those assets do not pass according to the laws of intestacy, but rather transfer according to their own terms.
You may have heard that the State of Ohio will inherit your loved one's property if they die without a Will. While this is possible under a process called escheat, it's pretty rare. Ohio's laws of intestacy are designed to transfer property to anyone related to the decedent - even if that person is a remote relative. The rules of intestacy extend to the decedent's spouse, children, siblings, parents, grandparents, aunts or uncles, great uncles or aunts, nieces or nephews, cousins (of any degree), or the descendants of a spouse who preceded the decedent in death.
But - if none of these people are living, and there is no one left to inherit the decedent's estate, the property would, eventually, pass to the State.
Ohio has a simultaneous death law which means that, if a person dies within 120 hours after a decedent, the second person, according to law, is deemed to have died at the same time as the first decedent. For purposes of intestacy, this means that the second person to die is not included in the division of property.
Simultaneous death issues arise, for example, when a husband and wife die as a result of the same car crash, or when a father and son or two brothers are injured and later die as a result of the same catastrophic event. For purposes of dividing the estate, if a person dies less than 120 hours after the first, the two are deemed to have died at the same time.
If you have a relative who died in the Columbus area and have questions about how to proceed, contact me at Wolfe Legal Services today. Or maybe you're not sure whether a loved one had a Will, and need advice on how to proceed. I work with families throughout the greater-Columbus area, including Delaware and Newark, and frequently appear in courts in Franklin County, Delaware County, and Licking County.
If you have questions, call me today at (614) 263-5297 or fill out our online form.
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