Why do you need a Last Will and Testament? Isn’t it preferable to avoid probate court? I don’t really have anything, but bills, why do I need a Will? Grandpa’s pocket watch, who should get it, when I die? What about Grandma’s jewelry?
Have you ever asked yourself any of these questions? Most people do, at one time or another. Most people wonder whether or not there is a need for them to draft their Last Will and Testament. Our answer is simple–Do you want to have a say in how things are passed down, should you pass away?
We understand that this is a simplified answer and does not completely answer the question posed. First, everyone needs to have a simple explanation of the probate process. In Ohio, the probate process is relatively simple. A person dies and leaves an estate. The estate may contain probate and non-probate assets. Probate assets are those items, which the decedent owned in his or her name alone. (The decedent is the person who has recently passed away.). A non-probate asset is an asset that passes by contract and/or by operation of law. For instance, consider home ownership. Most couples own their home jointly with rights of survivorship. This time of ownership “by operation of law” passes directly to the survivor, when a death occurs. Further, you can have other types of assets, which are owned jointly, such as bank accounts and automobiles. The second type of non-probate asset are those assets that “pass by contract.” These types of accounts include life insurance policies and possibly retirement accounts that have beneficiary designations. Further, your bank accounts can be held in your name alone and have a “payable on death” designation. These also are assets that “pass by contract.”
It is, therefore, possible to complete your estate plan with no need for the probate process. However, in the event that some item of property, whether it be real estate, a motorized vehicle or a financial account, does not have a designation, that will place it outside of the purview of the probate court. For this reason, most people choose to prepare a Will. Only through your Last Will and Testament can you determine to whom the assets contained in your probate estate will pass. Does Johnny get Grandpa’s watch? How about Grandma’s jewelry, should Susie get it or someone else?
Should you decide not to prepare a Will, the laws of the state will determine how your estate is divided and not you. In the State of Ohio, there is a statute of Descent and Distribution, which governs the distribution of a person’s probate estate, when the decedent had no will. It is Ohio Revised Code §2105.06, which states:
When a person dies intestate having title or right to any personal property, or to any real property or inheritance, in this state, the personal property shall be distributed, and the real property or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:
(A) If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;
(B) If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent's children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;
(C) If there is a spouse and one child of the decedent or the child's lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent's child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes;
(D) If there is a spouse and more than one child or their lineal descendants surviving, the first sixty thousand dollars if the spouse is the natural or adoptive parent of one, but not all, of the children, or the first twenty thousand dollars if the spouse is the natural or adoptive parent of none of the children, plus one-third of the balance of the intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;
(E) If there are no children or their lineal descendants, then the whole to the surviving spouse;
(F) If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;
(G) If there is no spouse, no children or their lineal descendants, and no arent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;
(H) If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;
(I) If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among the next of kin;
(J) If there are no next of kin, to stepchildren or their lineal descendants, per stirpes;
(K) If there are no stepchildren or their lineal descendants, escheat to the state. Ohio Revised Code §2105.06
This statute is very detailed and has a specific order which family members have priority in receiving a distribution from one’s probate estate. Following this statute can sometimes be counterproductive to your wishes. You may wish that Johnny be a certain age, before he receives his portion of your estate or that Susie’s distribution be used to obtain a college education. Without a Will, the money, should Johnny and Susie be adults, will be dispersed to them without limitation.
Another issue, which is becoming more popular, is the distribution of a person’s estate in same-sex couple relationships. As you can see by the statute, until Ohio recognizes these marriages, without a Will, your life’s partner will receive nothing.
Further, what happens if you are happily married today, and tomorrow, you become unhappily married and during the divorce, one of you suddenly dies, while you are still married. You estate may pass to the “soon-to-be-but-never-was ex.” Is this the result you would want to happen? Suppose you are arguing over the division of your marital and separate property? Trying to retain certain assets? Would you really wish to risk the possibility of those assets passing to that same person, should you unexpectedly pass away, prior to the end of the divorce?
As you can see, in most cases, it is advisable to have a Will. As it will express your desires in the distribution of your estate, rather being distributed according to the Statute of Descent and Distribution.
The Law Offices of Gale R. King, III has created this blog to provide information only and does not in any way intend for this information to be considered legal advice. Further, this information is not intended to create nor has an attorney-client relationship been created through the receipt of any of the information contained within this blog. Any person who receives this information should contact professional counsel, prior to acting on any information contained herein.
