As an estate planning attorney, I see what happens firsthand if somebody dies without a will. It's a common occurrence. In fact, most studies find that roughly half of Americans don't have one. It is called dying "intestate" if you pass away without an estate plan. When this happens, Ohio state law dictates what happens next.
When somebody with a will dies, Ohio probate court usually approve the executor named in the will to administrate the process. If there is no existing will, though, it's up to the state to appoint an administrator. In this case, there is a defined lineage that starts with a surviving spouse and advances to the next of kin depending on availability and circumstance. According to state law, the administrator needs to live in-state, so out-of-state children do not qualify. If no close relative meets the criteria, the state can appoint a non-relative, such a bank, attorney or other entity.
The administrator's role
There are two primary steps with intestate probate: first, wrapping up the affairs of the deceased and, second, distribution of their assets. The administrator will complete taxes, assess financial status and pay off any debts, and settle other outstanding accounts and balances. The administrator files a report to the probate court.
Inheritance is a notable part of the probate process, and it's the part most people are more familiar with. Here, the administrator manages distribution of assets from the deceased's estate to living heirs. This means carrying out the wishes of the will for those with an estate plan ready. If there is no will, the state again lets lineage decide.
The statute of descent and distribution
Every state's distribution chain is different. Relation is the primary factor, and the state has special rules to make sure that blended families are not overlooked. For example, the living spouse will receive all assets if all of the deceased's children come from that parentage. If the deceased has children from a previous relationship, the surviving spouse receives a lump sum and the rest goes to the children. These laws frequently change and it depends on individual relationships for how everything will break down in the end. If there are no surviving close family members, the probate court will consider aunts, uncles, cousins and other relations, depending again on individual circumstances.
In distribution, the administrator makes sure that titles, deeds and property change hands legally. The administrator is under guidance from the court to make sure everything is carried out correctly, ethically and legally.
Knowing what to do
Ideally, Ohioans would have an estate plan at the ready, with a prepared executor who understands your will and your wishes. While probate court presents a back-up plan for those who don't establish their own plan ahead of time, there are downsides to using this method. If somebody has been married more than once, it's unlikely that the law will define your relationships the same way that you do in real life. Estranged family members may have access to inheritance you may not have personally approved, and the court system is time consuming and costly. Any court fees come out of the overall estate, meaning your descendants will receive a reduced inheritance. If a loved one has died without a will, an attorney can still help you have a say in the court-appointed administrator and in overseeing the process to make sure that their wishes are carried out as best they can be.