Intestate Succession

What happens if someone dies "intestate"--that is, without having made a will?  Who gets their property?

The answer is provided by something called the "statute of descent and distribution."  This law tells us what to do with a deceased person's property. It's the legislature's attempt to guess what the deceased would have wanted if he or she had been asked the question or had bothered to tell us, and it's not an unreasonable guess in most instances. The people who take under the statute of descent and distribution are known as "heirs at law" or, in some situations, "next of kin."

We'll take a look at how one such statute works after the jump.

Section 2105.06 of the Ohio Revised Code, is a good example of a statute of descent and distribution.  It works like this:

• If the deceased has no surviving spouse, all property goes to the deceased person's children in equal shares.
• If the deceased has a surviving spouse and children, and the spouse is the parent of all of those children, everything goes to the spouse.
• If the deceased has a surviving spouse and a child, but the spouse is not the parent of that child, $20,000 goes to the spouse, and the balance is divided evenly between spouse and child.
• If the deceased has a surviving spouse and two or more children, but the spouse is not the parent of any of those children, the spouse gets $20,000 off the top and a third of what's left.  The children divide the other two thirds.
• If the deceased has a surviving spouse and two or more children, and the spouse is the parent of at least one, but not all, of those children, the spouse gets $60,000 off the top and a third of what's left, and the children divide the rest.
• In any of these situations, if a child of the deceased has died leaving descendants of her own--grandchildren or later generations--those descendants take their ancestor's share by representation.  The fancy legal term for that is per stirpes. Wikipedia has a nice article explaining how per stirpes works.
• If the deceased has no spouse or children, the property goes in equal shares to his parents. If both parents are also deceased, the property goes to the other descendants of the parents--the deceased person's siblings, nieces, nephews, and so on--per stirpes.
• If the deceased has no spouse or children, and no parents or descendants of parents living, half goes to the maternal grandparents or their descendants per stirpes, and half to the paternal grandparents or their descendants per stirpes.
• If the deceased has no spouse or children, and no grandparents or descendants of grandparents living, the property goes to the stepchildren of the deceased, per stirpes.
• If there are no living persons who can take under any of the rules we've just gone through, the property "escheats" to the state of Ohio.

There are only a few corollary rules that you need to know in order to correctly apply this statute in most situations: 

• The category “Children” include illegitimate children, even though it may be necessary to establish paternity in a court proceeding.  
• An adopted child is treated as a natural child of the adopting parent, and is not considered a child or issue of his biological parents.  
• “Brothers and sisters” include half-brothers and half-sisters; there is no distinction made between them.

Please keep in mind that this is what the computer people call a "default setting." What if you want to see your property distributed in a different way--give it to charity, or distribute it to different children in different proportions, or give some to the kids even if your husband is still living?

If that's the case, you need to make a will or create a trust, and that means coming to see your friendly estate planning lawyer.