Dying Intestate – “A Scary Story”

It’s almost Halloween – time for candy, tricks and scary stories. Every probate lawyer has a dossier of scary stories highlighting the hazards of dying without a Will.  Don’t allow your estate to become another nightmare story. 

Under current Ohio law, if you die without a Will, the legislature will write the Will for you, leaving you with no control over the distribution of your assets or who will administer your estate. Contrary to popular belief, the State of Ohio will not confiscate your assets, if you die intestate. However, the assets are subject to a complicated statute, leading to increased expenses and delays in estate administration.

What Happens If You Die Without a Will in Ohio?

When  individuals die without a Will in Ohio, their assets will be distributed as follows:

1. If no surviving spouse exists, the assets will be split between the decedent’s children.
2. If there is a spouse and the spouse is  the parent of all of the decedent’s children, the property will go to the surviving spouse.
3. If the surviving spouse is not the parent of all of the decedent’s children, the first $20,000 plus one-half of the balance passes to the spouse, and the remainder passes to the children.

Ohio’s Intestacy Laws: Letting the State Write Your Will

The statute includes six additional distribution levels, each more complex than the last. If these levels do not fully distribute the funds, the funds will ultimately forfeit to the State of Ohio.

Dying without a Will means losing the chance to leave assets to non-family members or charities, as the statute does not allow such distributions. The order of distribution is strictly followed, and any assets going to beneficiaries will be outright distributions. This means the decedent cannot delay the distribution to an age when the beneficiaries can better manage the funds. If a beneficiary is a minor, their share will be subject to guardianship until age 18 when the guardianship terminates and unrestricted access to the assets is granted.

Executor vs. Administrator: Who Will Manage Your Estate?

A Will allows you to designate an Executor who will gather assets, pay liabilities, and distribute assets to beneficiaries. They will also handle your final income and estate tax returns (if necessary) and manage your business until the estate settles. Without a Will, a distant family member or even a stranger may be appointed by the court as Administrator.

Additionally, the Administrator will be required to post a security bond equal to twice the value of the managed assets, excluding real estate. This expense can be avoided if the bond requirement is waived in your Will.

Your Will can also indicate guardians for your minor children. If the child’s other parent survives, they will typically be appointed guardian. However, without a Will, you will have no say in the court’s selection if there is no surviving parent.

The Benefits of a Will: Avoiding Delays and Extra Costs

A Will not only controls the distribution of your assets and the designation of your Executor and guardians but also grants the Executor the authority to manage your assets during estate administration. This includes selling real property, operating a business, or borrowing funds. Without this authority, the court-appointed administrator must petition the court for permission to handle these matters, resulting in higher costs and delays in finalizing the estate. 

Executing a Will allows you to control asset distribution and ensure that your wishes are respected. A properly drafted Will empowers your chosen Executor to manage your business and assets, ultimately reducing administration costs and allowing more assets to pass to your heirs. 

Even though we are close to Halloween, this is one scary story that can have a happy ending. If you have questions or concerns regarding your Will or need to create one, please get in touch with a Family Wealth Planning Group member.