In Ohio, if an individual passes away without a will, that individual’s probate assets pass to the State of Ohio. JUST KIDDING! However, that is what most people think happens. If an individual dies without a will, that individual is said to have died intestate and, therefore, the statute of descent and distribution applies(Ohio Revised Code Section 2105.06).
This statute provides an order of priority who inherits those intestate probate assets. Assets that are jointly owned or have a beneficiary named are not distributed according to this statute. Those assets pass to the joint owner or beneficiary as the case may be. This article only deals with probate assets.
A surviving spouse is at the top. The amount that a surviving spouse receives depends on if the deceased person had any children and if the children of the decedent were also the children of the surviving spouse. For example, if there are no children of the decedent surviving, then the surviving spouse inherits all of the assets. If there are children of the decedent surviving and those children are also the children of the surviving spouse, then the surviving spouse inherits all of the assets as well.
If there is one child of the decedent surviving and the surviving spouse is not the natural or adoptive parent of that child, the surviving spouse is entitled to the first $20,000 of assets plus one-half of the balance of probate assets. The remainder of the assets pass to the decedent’s child.
If there is a surviving spouse and more than one child of the decedent surviving, then the surviving spouse receives the first $60,000 if the spouse is the natural or adoptive parent of one, but not all, of the children plus one-third of the balance of the estate; or the first $20,000 if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the estate. The remainder of the estate passes to the children equally.
If an individual is not survived by a spouse, then the individual’s estate passes to the decedent’s children equally or their lineal descendants. If the individual did not have children or descendants living, then the assets pass to the decedent’s parents equally. If the decedent’s parents are not surviving, then the probate assets pass to the decedent’s brothers and sisters or their descendants. If there were no brothers or sisters or their lineal descendants surviving the decedent, then one-half of the assets pass to the decedent’s paternal grandparents and one-half of the assets pass to the decedent’s maternal grandparents. If there are no surviving grandparents or their lineal descendants, then the assets pass to the next of kin of the decedent, such as aunts, uncles, cousins, and more distant relatives. If all of those individuals do not survive the decedent, then the assets pass to the decedent’s stepchildren or their lineal descendants.
Finally, if none of the above-referenced individuals survive the decedent, then the probate estate escheats to the State of Ohio. That means that the personal property is paid to the county treasurer of the county where the estate is administered for use in the county’s school fund. Additionally, any real estate that is located in the State of Ohio is sold and the proceeds are split between the State and local government where the decedent resided.
Some other issues when an individual does not have a will is who should be the administrator and how do they obtain authority to administer the probate assets. There is an order of priority similar to the above list of distributees. However, in this situation, the administrator will need to be bonded which will cost money, and the administration will cost more and be much more difficult because without a will, there are no powers for the administrator to sell assets. This will require additional filings at the probate court and sometimes require the estate to be opened for a longer period of time. Plus all of the proceedings will be public record.
Therefore, it is important to have a Will to make sure that your assets pass to the beneficiaries of your choice and as simply as possible. Please take the time and see your estate planning attorney to assist you with the preparation of a will.
NOTE: This general summary of the law should not be used to solve individual problems since slight changes in the fact situation may require a material variance in the applicable legal advice.
James F. Contini II, Esq.
Certified Specialist in Estate Planning,
Trust & Probate Law by the OSBA
Krugliak, Wilkins, Griffiths & Dougherty Co., LPA
158 North Broadway
New Philadelphia, Ohio 44663