Every year, thousands of Ohio families go through the emotional crises of a loved one's death... And then are confronted with major legal and financial worries because the person who died has not made proper arrangements for distribution of his or her property after death.

         In many cases, a will has never been written. In others, the decedent has an estate plan -- but it hasn't been updated for many years and doesn't reflect important changes in their family and financial situation. In virtually all cases, the people left to deal with needless expenses and red tape (and sometimes with financial disaster) are the decedent's spouse and family members -- the people he or she would have least wanted to hurt.

         To help prevent these kinds of legal problems in the future, the lawyers of Ohio have developed this factsheet and a companion "Where There's a Will" videotape presentation.

Estate Planning Terms and Definitions

Estate -- All property and financial assets a person owns at the time of his or her death.

Will -- A signed, witnessed document in which an adult who is of sound mind and not under undue influence by another person gives specific instructions regarding how his or her estate should be distributed after death.

Probate court -- A special division of the common pleas court in each of Ohio's 88 counties whose primary function is to see that the estates of persons who die are properly administered.

Probate process -- A set of step-by-step procedures overseen by the probate court through which:

-- All assets and property in an estate are identified and gathered
-- All of the decedent's outstanding bills are paid;
-- All income tax and estate tax obligations are satisfied; and
-- The remaining assets in the estate are distributed to heirs according to the terms of a will.

Executor -- A trusted person named in a will to see that the estate is distributed in accordance with the terms of the will. The executor works closely with the probate court through each step of the probate process.

Dying intestate -- When someone dies without making a will ("intestate") the court has no reliable way to determine how the decedent wanted his or her assets distributed. Since some disposition must be made of these assets, a set of standard guidelines for distributing intestate estates has been written into state law. The probate court is required by law to distribute all of the decedent's assets according to this one-size-fits-all legal formula -- which may not match up at all with what the decedent would have wanted.

Questions and Answers on Ohio's Inheritance Laws

Q: When a person dies, do all of his or her assets have to go through the probate process ?

A: No . With proper legal advise, assets like a home, insurance policies, bank accounts, pension benefits and ira's can be set up so that they are either owned jointly with rights of survivorship or are payable on death through a contractual agreement. Legal ownership of assets held in these ways transfers directly to the co-owner or named beneficiary -- without going through probate. But not all assets can or should be owned in these ways -- and any property or asset titled exclusively in the decedent's name at the time of death must pass through the probate court before it can be distributed.

Q: If a married person dies without a will, won't the surviving spouse automatically inherit all of his or her probate property ?

A: Not necessarily . The only way all assets would pass to a surviving spouse would be if the decedent had never had children -- by this or any previous marriage. If a husband dies and leaves a wife and 2 or more children -- whatever their ages -- the formula for intestate estates would give the wife the first $60,000.00 from his probate estate plus a $25,000.00 living allowance (if the date of death was prior to 3-18-1999) $40,000.00 living allowance (if the date of death was subsequent to 3-18-1999) - and free use of the family home for one year. But the wife would receive only one-third of all the remaining assets. By law, the other two-thirds of the husband's estate -- including two-thirds of the value of the family home -- would be evenly divided among the children. If you want your spouse to inherit all of your assets, the only way to make sure that will happen is to put your instructions in writing...in a will.

Q: If a divorced husband who has remarried dies without a will, how are the assets distributed ?

A: The current (second) wife would receive the widow's share as described above. But is important to note that the portion of the estate that goes to his children would be divided equally among all children of both marriages. If there are young children from the second marriage still to be raised and educated, this can cause major financial problems for the current spouse.

Q: If a person dies without a will, will the probate court honor that person's verbal commitments or wishes regarding who should receive property or be named guardian for the minor children, etc. ?

A: No . Except under the most extreme deathbed circumstances , the court will ignore any alleged verbal instructions and will follow the standard guidelines in state law. Without reliable written instructions in a will, the court will appoint a guardian it thinks is most likely to manage assets wisely and provide economic security for the children. That person may very well not be the guardian a parent would have chosen.

Q: Is it more expensive and time-consuming to settle an intestate estate than to probate a will ?

A: Very much so. For example, a will usually names a trusted family member as executor, and requires no security deposit to guaranty that person's performance. For intestate estates, the court will appoint an administrator and require that person to post a sizable bond (paid for from the estate). In many cases, this bond costs more than having a will prepared.

Q: Who can make a will ?

A: Any person age 18 or older who is in a sound mind can make a will. The other basic requirements are that the person making the will not be under constraint or undue influence by some other person at the time the will is made, and that the person making the will sign it before two witnesses who also sign the will. It is important to avoid having a spouse or anyone else who is to receive property from the will be a witness -- because Ohio probate laws will not allow a witness to accept any bequest in excess of the amount they would receive if there were no will.

Q: Should both a husband and wife make wills, even if only one owns property ?

A: Yes . If the spouse who owns the property dies first, the surviving spouse could suddenly become owner of a large estate and have no legal arrangements. If the survivor were then to die before making a will, all those assets would be tied up in intestacy.

Q: Can a will be changed ?

A: Yes , in fact it's important that a will be changed any time there is a major change in your family situation; and reviewed every five years or so to be sure it's still current with state and federal laws. In order to be legally valid, any changes to a will must meet all the same requirements as the original will.

Q: There's a lot of talk about "living trusts" as an alternative to wills. Which would be better for me ?

A: If your estate is large or particularly complex, a living trust can be a valuable estate planning tool. But most families don's need an expensive, high maintenance trust agreement to keep most of their assets from having to go through probate (see above). Before investing $1,000 - $1,500 in a "trust kit," it makes sense to get a second opinion from an attorney who is not going to earn a large commission by selling you one particular kind of document.

If you need a lawyer

In all of Ohio's major metropolitan areas and certain other counties, the local bar sponsors a lawyer referral service. If you don't know a lawyer, you may call the Toledo Bar Association at (419) 242-2000 for a referral. Ask for fee information when you call.

The Ohio State Bar Association also co-sponsors the statewide pro seniors legal hotline and referral service for persons over the age of 60. For information / referral you may call 1-800-488-6070.

This fact sheet was developed by the Ohio State Bar Association through a grant from the Ohio State Bar Foundation, and is made available in your community by Judge Jack R. Puffenberger