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What Happens If You Die Without a Will?

It is often hard for people to prioritize or "find the time" to draft their last will and testament. For a lot of us, we know it is important but we keep pushing it further and further down our to-do lists. This is why a majority of Americans, over 60%, pass away without having ever created a will.

Why is this an issue? Dying without a will can cause both emotional and financial turmoil for your family. The good news though, creating a will (or better yet an estate plan) does not have to be a scary process. When you have a will, you control what happens to your estate, kids, and pets - instead of the courts deciding.


What Does Intestate Mean?

If you die without a will, the law considers you to have died intestate. In other words, you did not leave a written, legal document outlining how your property should be distributed upon your death. If this happens to you, the state in which you live will decide how your assets are given away and who gives them away. That includes your money, real estate (some exceptions), pets, family heirlooms, and any other pieces of personal property.


Ohio Intestate Laws

If you die without a valid will, Ohio intestacy laws will decide how your property will be distributed and who will receive your property. The "descent and distribution" section of the intestate stature favors family members and heirs that are closely related to you.


Below you will find a list of the "descent and distribution" depending on the deceased person's situation. To better understand said "descent and distribution" language, let me quickly define some terms that may not be familiar.

  • Per Stirpes is a legal term that describes how your assets are divided and distributed. In Latin, per stirpes simply means “by branch.” The state of Ohio for example uses Modern Per Stirpes, which is when all descendants in a direct line of descent are on an equal degree of consanguinity (blood kinship) to the deceased, the estate goes to such persons in equal parts, however remote from the deceased such equal and common degree of consanguinty may be - starting with the first living generation.

  • Escheat is a proceeding whereby real and personal properties of a deceased person who has left no will or legal heirs become the properties of the state.

Survived by a Spouse and/or Descendants

Here is what will happen if the deceased person is survived by a spouse and/or descendants (children, grandchildren, great-grandchildren, etc.)

  • Survived by a spouse and descendants, all of whom are descendants of the spouse - In this case, the surviving spouse will inherit 100% of the deceased spouse's probate estate.

  • Survived by a spouse and one child or descendants of the child who are not the descendants of the surviving spouse - In this case, since the deceased person's descendants are not the descendants of the surviving spouse (in other words, the deceased person had a child from a prior marriage or relationship), the surviving spouse will inherit the first $20,000 of the deceased spouse's probate estate plus one-half of the balance and the descendants will inherit the remainder, per stirpes.

  • Survived by a spouse and more than one child - If the surviving spouse is the natural or adoptive parent of at least one of the children, then the spouse will inherit the first $60,000 of the deceased spouse's probate estate one-third of the balance; but if the surviving spouse is not the parent of any of the children, then the spouse will inherit the first $20,000 of the probate estate plus one-third of the balance. The descendants will inherit the remainder, per stirpes.

  • Survived by a spouse and descendants - In this case, the surviving spouse will inherit 100% of the probate estate.

  • Survived by descendants and no spouse - In this case, the deceased person's descendants will inherit 100% of the probate estate, per stripes.

Not Survived by a Spouse or Descendants

Here is what happens if the deceased person is not survived by a spouse or any descendants.

  • Survived by one or both parents - In this case, the parents will inherit their deceased child's probate estate in equal shares if both are living, or the surviving parent will inherit 100%.

  • Survived by siblings and no parents - In this case, the deceased person's siblings will inherit 100% of the probate estate, per stirpes.

  • Not survived by parents, siblings, or descendants of siblings - In this case, the probate estate will pass to grandparents, aunts or uncles, great uncles or aunts, cousins of any degree, or the children, parents, or siblings of a predeceased spouse. In the unlikely circumstance that the deceased person is not survived by any family members as described above, then the entire estate will escheat to the State of Ohio.

Inheritance from Intestate

What will your family inherit then if you die without a Last Will and Testament? Potentially, nothing. Why? Because you may have left all non-probate property or your debts may exceed the value of the probate estate which will make your estate insolvent.


Now let's say you had enough life insurance to pay your debts so your estate is not insolvent, there are still major issues that can crop up when dealing with intestacy. Let me give you an example, let's say you pass away without a will and you have an estranged relationship with your parents but you do not have a spouse nor children, if you die intestate your estranged parents will inherit everything. The Courts do not take into consideration what your actual relationship is like with your family, they only consider the familial connection itself. Thus, your assets may be distributed to persons with whom you did not have a good relationship with.


High Stakes for Minor Children

If you die intestate, you cannot appoint a guardian or trustee for your children. If your spouse is not living, the state will decide who cares for your children and who manages your children's inheritance while they are minors. Upon their eighteenth birthday, your children will receive their entire inheritance. Not only does this mean your children could be left in the care of people whom you would not deem fit, but this also means that while they are minors someone else has control of their inheritance money.


Importance of Planning

For all the reasons discussed, you should move that "estate planning" to-do up your list. If you need help in creating your estate plan, contact Elizabeth Mitchell, esq. of The Rose Law Firm. It is never too soon to begin estate planning. Elizabeth will help you develop an estate plan to protect your assets, provide for your loved ones, and ensure that your final wishes are carried out after death.


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