When a person dies, his will controls how and to whom his assets are distributed.  If someone dies without having a will, Ohio law determines who will inherit and in what proportion.

Often, however, upon a person’s death, his heirs and family members are surprised to learn that not everything the decedent owned will pass according to the provisions of his will.  As a rule, any asset that is owned jointly with rights of survivorship or has a named beneficiary will pass directly to that joint owner or beneficiary outside of the probate process.  Assets which pass directly to a joint owner or beneficiary outside of probate are often referred to as nonprobate assets.  If the asset goes directly to someone outside of probate, that asset is not subject to the provisions of the will.  The decedent may have thought he left his estate equally to two beneficiaries, but if some of his assets had a named beneficiary(ies), the end results might be quite different.

So what kinds of assets are nonprobate assets?  It all depends on how assets are titled.

In Ohio, real estate can pass outside of probate through either a survivorship deed or a transfer on death designation affidavit (formerly known as a transfer on death deed).  A survivorship deed is a deed where the property is held in two names, often a husband and wife, which contains the language “for their joint lives, remainder to the survivor of them” or similar language.  Simply having two names on the deed will not create a survivorship deed.  There must be survivorship language in the deed.  Ohio real estate can also pass outside of probate through a transfer on death designation affidavit.  This is an affidavit executed and recorded by the property owner that states that upon his death, he leaves the property to a specific person or persons. 

Bank accounts such as checking and savings accounts and certificates of deposit can also pass outside of probate if they are held jointly with rights of survivorship.  Bank accounts titled in one name with one or more payable on death beneficiaries will also pass directly to those beneficiaries outside of the probate process.  In fact, any investment account that is held jointly with rights of survivorship or that has a named beneficiary will pass directly to that joint owner or beneficiary without going through the probate process and without passing pursuant to the terms of the owner’s will.  Even vehicle titles can be held jointly with rights of survivorship or can name a transfer on death beneficiary.

In addition to assets held jointly with rights of survivorship and with named beneficiaries, Ohio law provides for certain assets to pass to a surviving spouse, even if the spouse is not a joint owner or beneficiary.  For example, Ohio law provides that upon the death of one spouse, the surviving spouse can transfer two of the decedent’s vehicles, up to a total value of $40,000, into his or her name, even if the surviving spouse is not a joint owner or transfer on death beneficiary on the vehicle’s title.