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WHAT HAPPENS IF I DIE WITHOUT A WILL If you die without a Will by Levone



If you die without a Will (“intestate”) and have not made alternative arrangements to distribute
your money and property (your “estate”), Ohio laws determine how they will be distributed.
Your estate will have to go through the Probate process, which may be more costly, time-
consuming, and complicated without a Will. Where minor children are involved, the expenses
of Court administration may continue for years.

A person may die without a Will because he or she never wrote one and because the Will
cannot be found. A person can die without a Will even when they thought they had one. This
happens most frequently with handwritten or do-it-yourself Wills that are later found to be
invalid, in whole or in part. Of course, this determination is usually made after a person dies -
when it’s too late to correct the mistake.

When a person dies without a Will, the Court appoints an individual (or “representative”) to pay
debts, taxes, and funeral expenses, and to distribute the remainder to family members
according to strict statutory guidelines. A court-appointed representative must post a protective
bond before he or she can administer the estate.

If both parents of minor children die without a Will, the State may decide who will be the
children’s guardian. Children or family members with special needs may not be provided for
according to your wishes. In the case of a second marriage where the decedent had intended
to provide for step-children, or to limit the inheritance of the second spouse, those wishes will
not be carried out without a valid Will. If survivors cannot agree on how to divide up personal
property between them, the Court may order a sale and divide the proceeds according to legal

Alternatively, a Will allows you to name who will administer your estate and raise minor children;
specify how, when, and to whom your property will be distributed; specifically disinherit certain
individuals if you desire; make specific gifts of treasured personal property; provide for
individuals who have special needs; make charitable contributions; and in some cases, plan to
avoid or minimize estate and gift taxes.


       •       Name an Executor whom you trust to administer your Estate.
       C       Waive bonding requirements for your Executor and avoid the expense of bond
       •        Express who will get your money and how much of it, including friends or
               charities who would not be beneficiaries under legal guidelines;
       •       Minimize the amount of taxes to be paid at your death;
       •       Specify who receives personal possessions, such as family heirlooms;
       •       Name a guardian for minor children if both parents are not living;
       •       Specify the age at which children or other young beneficiaries will receive your
       •       Plan for children and family members with special needs; and
       •       Disinherit certain individuals if you desire.

Probably. But some parts may be based on legal provisions and terminology from your former
home state that may differ from Ohio law. It is a good idea to have your Will reviewed by an
Ohio attorney, who can advise whether changes are necessary. This is especially important
when you are moving to Ohio from a Community Property State as the laws in those states
concerning property ownership can vary significantly from Ohio’s laws.


You should review your estate plan with an attorney when you marry or divorce, when children
are born, when a spouse or primary beneficiary of your estate dies, or when any other major
change in life circumstance occurs. If you receive a significant inheritance or there is a
significant change in your assets, a review is also recommended. When individuals named to
make decisions on your behalf during your lifetime, or to administer your estate, die, become
incapacitated, or unavailable, you may need to update your document. Of course, anytime you
want to make a significant changes in the provisions of your estate plan, you should discuss
those wishes with your attorney. In any event, you should have your estate plan reviewed at
least every three years to insure compliance with any changes in the tax and estate laws.

If your estate plan needs to be revised, NEVER make handwritten changes to legal documents,
such as your Will or power of attorney. Doing so could invalidate the entire document. If you
need or want to make changes, an attorney can prepare an amendment to the document so
that it remains valid.


The Durable Power of Attorney (Financial and Business Affairs)

A Durable Power of Attorney (DPOA) is a document that allows you to name the person or
persons you would want to handle your financial affairs (your “agent”) if you become
incapacitated or incompetent. Without a DPOA, if you become mentally or physically unable to
manage your affairs, the Court will appoint someone to do so (a “Conservator”). Court
appointment of a conservator can be a lengthy and costly process that creates stress and
anxiety for your loved ones. Until the appointment of a conservator, your family members may
have difficulty accessing funds necessary for your care or for their own well-being.

Your DPOA also allows you to designate the extent of the authority your agent has in
management of your property and finances. Your DPOA is good until you revoke it or until
your death.

THEM? (Medical Decisions)

The Living Will

The Living Will allows you to express your wishes for medical treatment and end-of-life care if
you become incapacitated. The Living Will provides advance written instructions on the types
of health care decisions you would want to have made on your behalf only if you are
permanently unconscious or terminally ill and are unable to express your wishes. For instance,
the Living Will allows you to express your wishes about life-sustaining treatment, nutrition,
hydration, and organ donation.

The Health Care Power of Attorney

Along with the Living Will, you should have a Durable Power of Attorney for Health Care. In the
Health Care Power of Attorney, you appoint a person or persons to make health care decisions
(an agent or proxy) in the event that you are no longer able to do so. The health care agent
named in your Durable Power of Attorney must carry out the wishes expressed in your Living
Will. The authority of the agent is also limited in other ways. For example, your health care
agent cannot withdraw “comfort care” and cannot authorize withdrawal of life-sustaining
treatment unless two physicians confirm that you are in a terminal condition or permanently
unconscious state, and there is no reasonable possibility that you will recover.


Most estates are not subject to the federal estate tax, sometimes called death taxes. Your
taxable estate is your gross estate minus allowable deductions. And even if tax applies to an
estate, it may be eliminated or minimized by available tax credits.

Your gross estate is the amount of property and assets in your estate at the time of your death,
plus life insurance proceeds, the value of certain annuities, and certain gifts you made in the
last three years. In 2007 and 2008, any gross estate under $2 million is not subject to federal
estate tax. In 2009, the applicable exclusion amount (the amount of gross estate not subject to
tax) increases to $3.5 million. And for decedents dying in 2010, there will be no tax on any
estate, no matter how large. However, this tax scheme ends in 2011, at which time estate
taxes are scheduled to be applied to gross estates over $1 million. Congress will likely revisit
the estate tax laws before that time, but the outcome cannot be predicted.

Even for estates that exceed $1 million, allowable deductions may eliminate any estate taxes.
An estate inherited by a surviving spouse may not subject to estate tax until the second spouse
dies (the marital deduction). Deductions are also allowed for funeral expenses, outstanding
debts at the time of death, and charitable deductions.


A trust is one possible vehicle for managing your assets during your lifetime and/or disposing of
them at your death. There are two basic types of trusts: Living Trusts and Testamentary
Trusts. “Living” means that the trust is created and funded during your lifetime, rather than at
your death. Testamentary trusts are incorporated into the creator’s Will, so that they are not
funded until the person who created the Will dies.


A living trust is a legal document that establishes a fund to manage your assets. Most Living
Trusts are revocable, which means that at any time before your death, you can revoke or
cancel the trust. You can also make changes or amendments to the trust. However, at your
death, the trust can no longer be revoked or modified.

       The trust document identifies the following people:
       1)      the person establishing the trust (the grantor or settlor), you (and if applicable,
               your spouse) as trustee(s) or managers of the trust property,
       2)      the successor trustee (who takes over when you die), and
       3)      the beneficiaries (who gets the assets in the trust).

If you are the trustee of your trust, you do not need to maintain separate records or file
separate income tax returns for your trust. Trust property is included on the tax return that you
file under your social security or taxpayer I.D. number.


At your death, your revocable trust is administered “outside” of the probate process. Therefore,
the primary advantage to a properly funded revocable trust is that the time-consuming and
expensive probate process can be avoided. However, a revocable trust established only to
avoid probate does not ensure avoidance of estate taxes (see our discussion on “death” taxes
in another section).

The probate avoidance trust can include or be combined with another type of trust designed to
save on estate taxes, providing for a family member with special needs, to benefit your spouse
or children, or to benefit a non-citizen spouse. For example, if you are married and your estate
is valued at more than two million dollars, you may wish to establish a Living Trust. After your
death, your trust may pay income your spouse, with the trust property passing to children or
grandchildren when he or she dies. This type of trust allows taxes on your estate to be deferred
until the death of your spouse, and minimizes taxes at that time.

In general, if your estate is not likely to be subject to estate taxes, you can establish an estate
plan with a Will coupled with Will alternatives that allow assets to avoid the probate process.
For instance, if your primary assets are a home, vehicles, and bank accounts, you have options
for transferring these assets outside of the probate process.


There is a Probate Court in each Ohio county to supervise the administration of a decedent (the
person who has died). “Probate” is the process required by the Probate Court for insuring that
the debts of decedent’s estate are paid and that certain assets are transferred to the rightful
beneficiaries. When people talk about wanting to “avoid probate,” they are usually talking about
avoiding costs and attorneys’ fees associated with a probate estate, avoiding a long probate
process, or having their financial affairs made public.

Probate assets, or assets that are included in a probate estate, include assets transferred by a
Will or that require court administration because the decedent made no Will, and for which
transfer by non-probate means is not available. Often, with careful planning, especially when
minors are not involved, assets can be designated to pass outside of the probate process.
These assets include property held in joint tenancy (such a joint checking account or a house
owned jointly by husband and wife), life insurance policies and retirement plans with named
beneficiaries, assets with a transfer on death designation (such as a payable on death bank
account or a transfer on death house deed), and property held in revocable (“living”) trusts.
See the sections on this website about Will Alternative and Revocable Trusts for more
information, or consult an attorney.

Will alternatives are methods or legal processes for insuring that assets can be transferred
“outside” of the probate process at your death. In Ohio, common Will alternatives are:

       Your Home and Other Real Estate:
       -       Joint with Right of Survivorship Deeds, which effect the transfer of real property
       to the surviving joint owner; or
       -       Transfer On Death Deeds, which are signed and recorded by a sole owner or
       tenant-in-common during his/her lifetime, and designate a beneficiary to which your real
       property Will be automatically transferred at death.
       Your Vehicles:
       -       Transfer On Death Title for a specific vehicle, prepared and signed during your
       lifetime. Call the Ohio Bureau of Motor Vehicles or consult the bureau’s web at
       -       After death, if married, a spouse can take two vehicles outside of Probate. Tip: If
       you are married and own more than two vehicles, do not title more than two vehicles in
       each spouse’s name.
       Bank Accounts (Checking and Savings Accounts, Certificates of Deposit) and
       Brokerage Accounts):
       -       Joint with Right of Survivorship Accounts; or
       -       Transfer on Death designations (contact your banking institution, credit union, or
       Your Life Insurance, Retirement Accounts, 401(k) Accounts:
       -       Designate individuals as beneficiaries. DO NOT designate your Estate as a
       beneficiary of any policies or accounts, except as a last alternate, if necessary.


The transfer-on-death deed allows you to keep title to your home during your lifetime and pass
it to the person(s) who you want to get your house after your death (the beneficiary or
beneficiaries). An attorney will prepare a deed naming your beneficiaries. Then the deed is
signed and recorded while you are living. After you die, the beneficiaries simply file an affidavit
at the County Recorder’s office and produce a death certificate to have the property transferred
to their names.

The TOD deed is a probate avoidance technique when there is only one owner for the property
or the owners are tenants-in-common (each owning an equal share). If property is jointly held,
it is usually not necessary or advisable to change ownership to one owner or to have a transfer-
on-death mechanism until one owner dies.

       Other Advantages of the TOD Deed:
       •      Because your home remains in your name while you are living, you can protect
              your property from legal actions against the beneficiaries. Beneficiaries cannot
              transfer, mortgage or pledge interest in the property while you are living,
              because they have no ownership rights.
       •      Under current estate tax law, this form of real estate transfer allows the
              “stepped-up” basis to be preserved. In other words, you house will pass to your
              named beneficiaries at the fair market value at the time of your death (rather
              than at the “original basis” or original cost as adjusted for improvements). The
               “original basis” is “stepped-up” to the value of the property on the date of death.
               No capital gains are assessed for the “step-up” in value. In contrast, if you gift
               your property to your beneficiary before your death, the beneficiary may be
               subject to capital gains taxes when he/she sells the property.

       What The TOD Deed Does Not Do:
       •     The TOD deed does not allow avoidance of estate taxes if your estate will be
             subject to them.
       •     A TOD deed does not protect the property from your creditors because you are
             still the owner.
       •     The TOD deed provides no guarantee that there will not be conflicts between
             beneficiaries after your death. After the property is transferred to the
             beneficiaries, they will have to agree on what should be done with the property.
       •     Also, if a named beneficiary dies, the remaining beneficiaries will share equally in
             the deceased beneficiary’s share. If you intended for that share to go to the
             deceased beneficiary’s children, your intent will not be carried out unless you
             execute a new deed naming those children. For instance, if you name your three
             children as beneficiaries, and one of your children dies before you, the two
             surviving children will share the property equally. If your deceased child had
             children (your grandchildren) that you want to receive their parent’s 1/3 share, a
             new deed must be prepared. That deed must contain the names of your two
             living children and the names of the grandchildren who should take in the place
             of their deceased parent.


Although it is possible to make a valid and effective Will by yourself, doing so increases the
possibility that you may make mistakes in writing or signing it. Most people require a simple
Will and find that the costs of having an attorney prepare their estate plan are reasonable and
well worth the peace of mind. In addition, many people have concerns or complex situations
that should be discussed with an attorney. Legal assistance can help ensure that your
intentions are clearly communicated and that no confusion arises after your death.

For instance, an attorney can provide advice on:
        -      Strategies for avoiding the Probate process after your death;
        -      Choosing personal representatives and agents to carry out your wishes;
        -      How to provide for family members with special needs;
        -      Minimizing estate taxes at your death;
        -      Achieving certain goals, such as the management and distribution of your
               property after your death;
        -      Disinheriting certain individuals; managing anticipated conflicts between your
               heirs; and ensuring that your wishes are clearly expressed and can withstand
               legal challenge, such as a contest to your Will after your death.


A Will contest is a type of litigation challenging the admission of a Will to Probate. Individuals
cannot challenge a Will simply because they did not get what they wanted or do no think the
provisions of a Will are “fair.” Most Will contests are based on one of the following reasons:
       •       A belief that the testator (the person who made the Will) was subjected to fraud,
               coercion or undue influence when the Will was created;
       •       The testator lacked mental capacity (was senile, delusional, or of unsound mind)
               when he or she made the Will;
       •       The Will is a forgery or does not conform to legal requirements; or
       •       The Will contains ambiguities in its provisions.

        The Court may disallow only the part of the Will that was challenged or throw out the
entire Will. The decedent’s property will be distributed according to the last previous Will, or if
there is none, as if the person had died without a Will. An attorney can advise you on whether
a Will contest makes sense, depending on the specific facts and circumstances, and what you
hope to achieve.


Medicaid is a needs-based government program for individuals who are blind, disabled or over
the age of 65. Medicaid covers the expenses of long-term nursing care when an individual
lacks income or assets to pay for care. Medicaid Estate Planning is the process of legally
making a person eligible for Medicaid. In Ohio, the Medicaid program is administered by the
Ohio Department of Job and Family Services.

In determining financial eligibility for Medicaid, two factors are considered: assets and income.
In general, an individual will have to use most of his/her assets before qualifying for the
Medicaid program. However, a person is permitted some allowances, such as a $40 per month
personal allowance, payments for medical insurance premiums, and payment of past medical
expenses. If a spouse remains at home, he or she is permitted to keep the primary residence,
a vehicle, household goods, and can maintain a minimum monthly needs allowance. Transfers
of other assets or transfers to individuals other than the spouse are usually not proper unless
they occur five years before a person enters a nursing facility. However, a person may, for
instance, pay for funeral arrangements in advance or make improvements on the primary
residence in order to “spend down” assets that would otherwise be countable in determining

Consultation with an attorney is advised to insure proper asset transfers and full use of options
under the Medicaid laws.


       •       Advice regarding the best estate plan for you and your family;
       •       Advice on how to avoid Probate;
       •       Preparation of your Will, Durable Power of Attorney, Living Will, and Health Care
               Power of Attorney;
       •       Preparation of Trusts to provide for probate avoidance, estate tax planning, non-
               citizens, minor children, grandchildren, and family members with special needs;
       •       Assistance with property transfers, including preparation of Transfer on Death
               and other deeds to accomplish goals of asset balancing and management;
       •       Protecting your assets before and after your death;
       •       Medicaid and other planning for senior citizens;
       •       Estate Administration in Probate Court;
       •      Trust Administration; and
       •      Probate Litigation, including contesting a Will, challenging who has been named
              to administer a Will or trust, or objecting to the manner in which an Executor or
              fiduciary is managing an estate or trust.

For more information, contact Charles McGinnis or Leanne Montgomery at 721-1975.

Website Disclaimer:
       The information provided on this site is not intended to provide comprehensive legal
advice or to take the place of professional advice. You should consult an attorney to discuss
your needs and considerations specific to your situation.

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