By Robert Moore

It his highly recommended that everyone have at least a simple will that dictates to whom their assets will go if they pass away. However, not everyone heeds this advice and never executes a will. If someone dies without a will, called intestacy, state law dictates who receives the deceased’s assets. The following is a discussion of the intestacy process.

Ohio law has a precise order as to who receives a deceased person’s assets if they die intestate (no will). The order is as follows:

• If married with no children, surviving spouse receives all assets.

• If married with children and all children are the children of surviving spouse, surviving spouse receives all assets.

• If married with children and one child is not the child of the surviving spouse, surviving spouse receives $20,000, plus half the assets. Child receives the other half.

• If married with children and more than one child is not the child of the surviving spouse, surviving spouse receives $20,000, plus a third of the assets. The children receive two-thirds of the assets.

• If no surviving spouse but children, each child receives an equal share of the estate.

• If no surviving spouse or children, assets go to the parents.

• If no surviving spouse, children or parents, assets go to siblings or their descendants.

• If no direct family members, to the next closest kin.

• If there are no next of kin, to the state.

For people who are married with children from the same marriage, the intestacy inheritance may be the same plan as they would want in their will or trust. However, for people who are not married, on a second marriage or with stepchildren, the intestacy laws may not be what they want.

Consider the following example, a farmer builds up a substantial land base while farming. Farmer is married with one son who is taking over the farm operation. When he is 60 years old, his wife passes away. At 65, he remarries. Farmer never gets around to executing a will or trust. At 67, the farmer passes away and his second wife survives him. Under Ohio intestacy laws, the surviving spouse will receive $20,000, plus half of all the assets. In this scenario, the spouse of two years will receive more of the farmer’s assets than the son who farmed his whole life with his father.

A situation that sometimes arises with intestacy is what state’s laws apply. For example, what if a person owns farmland in Ohio but retired to Florida and now is a Florida resident. For personal property such as vehicles and machinery, the state where the person resided controls. For real estate, the state where the real estate is situated controls. The deceased person’s personal property will be subject to Florida intestacy laws, while the Ohio farmland will be subject to Ohio intestacy laws. It is possible that the personal property will be allocated among the heirs differently than the real estate, due to differences in intestacy law in Florida and Ohio.

Even if a will exists, it is important that the heirs know where to find it. A will that cannot be found is no will at all. If a will cannot be found, then the estate will be intestate. When the estate plan has been finalized, be sure that the heirs know where they can find the will. It is also good to let the heirs know the identity of the attorney drafting the will, as the law office will usually keep a copy of the executed will.

The above discussion shows the importance to having at least a basic will to avoid intestacy. Relying on intestacy for the estate plan may result in assets not being distributed to heirs in an equitable or fair manner. Intestacy also tends to be more expensive and cumbersome to administer, resulting in more legal fees for the heirs.

Moore is an attorney with Wright & Moore Law Co. LPF. Email him at [email protected] or call 740-990-0750.