The Importance of an Ohio Living Will

Dying without a will means that the decedent died “intestate.”  If the decedent had a will they are said to have died “testate.”

When the person who has died (the decedent) leaves a will, the probate court normally appoints the person named in the will to serve as executor of the estate. If the person’s will did not name anyone to be the executor, or if the person(s) named in the will refuse or cannot act, then the probate court will appoint someone to act as the administrator of the will. The executor (or the administrator) is responsible to the court to ensure that the decedent’s financial affairs are resolved and the remainder of the estate is distributed according to the instructions in the will.

When someone dies intestate, the probate court will appoint an administrator of the estate. Like the executor or administrator of the will, the appointed estate administrator will report to the court to ensure that the decedent’s financial affairs are resolved and the remainder of the estate is distributed according to the law.  The court would typically appoint the closest next-of-kin to be the administrator of the estate. The administrator must be an Ohio resident. If there is no surviving spouse or next of kin resident of the state, or if the court finds such person(s) to be unsuitable, some other suitable person will be appointed as administrator.

The duties of an administrator are similar to those of the executor of a will.  However, when there is no will the administrator must seek probate court approval before taking certain action.  This would include selling personal property or real estate owned by the decedent.  This can make for a more complicated and expensive process and is a good reason to have a will drafted by a qualified attorney. The basic duties of an administrator where there is no will are generally the same as an executor of an estate where the decedent died testate. In general these duties are to:  Identify and determine the fair market value of all financial assets and property that were owned by the decedent at the time of death;  Collect all assets of the decedent; Pay all legitimate debts, including taxes, and expenses; and finally to distribute the remaining assets to the beneficiaries (next-of-kin where there is no will).

The statute of descent and distribution, also known as the intestacy statute, is the law that determines to whom the probate assets in an intestate estate will be distributed to the decedent’s heirs after all claims, expenses and taxes have been paid.  Generally, the statute favors those heirs most closely related to the decedent. When someone dies and there are probate assets but no will, the person is said to have died “intestate.”  The Ohio General Assembly has provided to whom that property should pass.

 

Ohio Revised Code §2105.06 provides:

“When a person dies intestate having title or right to any personal property, or to any real estate or inheritance, in this state, the personal property shall be distributed, and the real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:

(A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;

(B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent’s children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;

(C) If there is a spouse and one child of the decedent or the child’s lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent’s child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child’s lineal descendants, per stirpes;

(D) If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one­ third of the balance of the intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;

(E) If there are no children or their lineal descendants, then the whole to the surviving spouse;

(F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;

(G) If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;

(H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;

(I) lf there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, per stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among such next of kin;

(J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;

(K) If there are no stepchildren or their lineal descendants, escheat to the state.

In applying the statute of descent and distribution you need to understand that surviving spouses have special rights in addition to this.

No later than six months after his or her appointment, every administrator of an estate is required to file a final and distributive account, with the probate court.   The account must include an itemized statement of all receipts, and disbursements, as well as all distributions made by the administrator during the reporting period. When the administrator files the final and distributive account with the court, and after it is approved by the probate court, the administrator is released from his or her duties.

Being an administrator can be a complicated matter involving unfamiliar legal and financial responsibilities, and can expose the administrator to financial liability if claims and assets are not properly handled. The administrator of an estate is usually doing this for the first time and is entering territory unfamiliar to them. A competent probate lawyer can provide the administrator with the correct legal advice to keep the administrator out of trouble and make the process as easy as possible.