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Without will, your death could kill your relatives

| Sep 19, 2013 | Estate Planning, Inheritance / Disinheritance, Wills / Living Wills

This article originally appeared as a column for the Cleveland Jewish News.

While official statistics are difficult to find, it has been estimated that more than half of adult Americans have no will to specify how their assets are to be distributed upon death. Most people understand that a will is a good thing, a prudent thing. Regardless, too many put it off. Some simply don’t make it a priority. Others simply assume they are too young, too healthy, or too cash-poor to bother. But whether you have $100 in the bank or $1 million, you fail to plan at the peril of your heirs.

What happens when someone dies without a will, or “intestate?” Intestacy rules may vary from state to state, and it is highly advisable to contact a probate attorney to assist with the estate of a loved one, or to plan your own. In Ohio, the assets of someone who dies intestate will be divided according to very specific rules.

At the outset, it is worth noting that some assets follow other, non-probate rules. Funds in retirement accounts and life insurance policy proceeds will be distributed to the beneficiaries specified with the plans. Assets held in a living trust will be distributed according to the trust provisions. Bank accounts, real property and vehicles that are held with payable-on-death or transfer-on-death provisions will be distributed accordingly, as will property held with survivorship provisions.

But other property – anything from the stock account to the sofa – will be distributed according to a complex set of intestacy rules. Ohio Revised Code 2105.06 provides that property will go first to a surviving spouse. If the deceased has no surviving spouse, it will go to his children, or the children of his children. However, if the surviving spouse is a step-parent to one or more children, the estate will be split between the spouse and the children or their descendants in amounts that depend not only on the number of children, but also upon the parentage of each. Then, if there is no surviving spouse, and no children or their descendants by blood or adoption, the property goes to the parents of the deceased. If there are no living parents, it goes to siblings. Then to grandparents. Then to next of kin. Then to stepchildren. And, finally, if no relatives could be found in any of those relatives, the property will line the state’s coffers.

Of course, unusual circumstances could arise to further complicate things. For example, a person who would otherwise inherit will be cut out if she does not survive the deceased by at least 120 hours. A child in utero at the time of the deceased’s passing can inherit, so long as she survives at least 120 hours after birth. A child whose paternity was never legally established at the time of death will not inherit unless paternity is later established. And, unsurprisingly, one will not inherit if they perpetrated certain crimes – murder, for example – against the deceased.

With so many rules to follow, the challenges of managing division of an estate without a will, especially as today’s family very often looks much less like “Leave it to Beaver” and much more like “Modern Family,” is quite apparent. The bottom line is that, even without a will, assets will be divided in some way. Why give control of that process to a statute?

Just as you would probably prefer to manage the estate of a loved one who left a clear will indicating his wishes, no matter how large or small your estate, your heirs would doubtless prefer the same. And, most importantly, you will retain more control over the process and you will have peace of mind knowing that your loved ones will be taken care of in the way that you, and not the state, would prefer.

*Andrew Zashin writes about law for the Cleveland Jewish News. He is a co-managing partner with Zashin & Rich, with offices in Cleveland and Columbus.