If you do not do any estate planning during your lifetime, the state of Ohio has already made your estate plan for you.   When an Ohio resident dies without a will, the Ohio Revised Code specifies how that person’s assets are to be distributed.

A person’s estate consists of all assets titled solely in his name, without a beneficiary.  It can also include the decedent’s share of jointly-owned real estate if the real estate is titled as tenants in common, rather than as joint tenants with rights of survivorship.

When a person dies without a will, the estate must still be probated.  Because there is no will in which an executor was named, the probate court will appoint an administrator.  The person with the highest priority to serve as administrator is the decedent’s surviving spouse, assuming the spouse is also an Ohio resident.  If there is no surviving spouse, or the surviving spouse is unwilling or unable to serve, then the decedent’s next of kin who is an Ohio resident has the next right of priority.  However, if there is no next of kin willing or able to serve, the probate court may appoint any suitable person who is an Ohio resident.  

An administrator, unlike an executor, also usually needs to be bonded.  Typically, a will will waive the bond requirement for anyone nominated in it to serve as executor.  However, when there is no will to request a bond be waived, the administrator must be bonded in order to be appointed, though there are a few exceptions.

Once an administrator is appointed, his rights and duties are similar to those of an executor, but there are a few differences.  For example, a will typically will give the executor the authority to sell real estate owned by the decedent.  When there is no will, the administrator will have to get the written approval of all of the estate’s beneficiaries to sell the decedent’s real estate.  Should one or more beneficiaries refuse, the administrator will have to file a land sale action in the probate court in order to get the court’s authorization to sell the property.

After the debts of the decedent have been paid, and the assets gathered, the administrator will distribute the remaining assets to the decedent’s heirs.  Ohio Revised Code Section 2105.06 states how the assets of someone who died without a will are to be distributed.

Generally, the statute provides that if the decedent was not married but had children, his estate will pass to his children equally.   If he was married and had no children or if he was married and all of his children are also the natural or adopted children of his surviving spouse, his entire estate passes to his spouse.

But if the decedent was married and he had at least one child that is not a natural or adopted child of the surviving spouse, the estate will be divided between the spouse and his children.  The statute also details who inherits in the case of persons who die without a spouse or children as well as who receives the share of an heir who died before the decedent.

Occasionally, the decedent’s family is surprised by the results of the statute.  A surviving spouse may assume that she will receive her husband’s entire estate, not realizing she will have to divide it with his child from a previous marriage.  Or the decedent’s surviving son and daughter are surprised to learn that they each will receive only one-third of their mother’s estate, and not one-half as they expected, because the children of their sister who died many years ago will share equally the third of the estate their mother would have received if she had lived.  Certainly, often the statute provides results that are not what the decedent might have wanted.

Having a valid will avoids these kinds of surprises.  Having a will also is the only way that you can leave a share of your probate estate to someone other than the family members dictated by law or change the proportions that different beneficiaries will receive.  A will can eliminate the expense of procuring a bond for an administrator as well as the expense of a possible land sale action.  Most importantly, a will ensures that your wishes about the disposition of your estate are honored.