Let’s assume a person is struck by a car and lives for 48 hours and then dies.  The person has a wife, a child, and a mother.  There is a million dollars judgment for the loss.  The Probate Court will divide and allocate the judgment between the survival action and the wrongful death action.  For example, the Judge allocates $200,000 to the medical bills, lost wages and the pain and suffering of the decedent prior to death.  This is an estate asset because it represents what the decedent lost prior to death.  That amount will go to the wife under the terms of the Will.  The $800,000 allocated to the wrongful death action is divided based on the relative losses of the wife, the child, and the mother.  The allocation is based on age and support issues of the three.  If the child is three, he will get more than is he is seventeen, because there are more years of support.  The mother of the decedent should get less because she is older and there is no legal obligation to support her.

• Delay in the administration
• Mismanagement of the estate or trust affairs
• Self dealing – using assets for their own benefit
• Breach of a fiduciary duty
• Breach of loyalty
• Failure to communicate to the beneficiaries

When a person dies without a will their personal property and real estate is distributed as follows:

Before we start with the rules, the definition of per stirpes must be defined. “Per stirpes” means “by representation”.  If any heir dies, before the decedent in question and is survived by children, they move up the family tree and take their parent’s spot.  For example, the heirs of an estate are A, B, and C.  If A and B are living and C predeceased the decedent, but leaves two children Y and Z, they take C’s place.  Thus, the estate would pass one-third to A, one-third to B, and one-third shared by Y and Z.  This concept of per stirpes is contained numerous times below.

(A)         No spouse with children. The whole estate is divided between or among the living children per stripe.  

(B)       Surviving spouse and children where the children are from both parents.  The whole estate goes to the surviving spouse.

(C)       Surviving spouse and one stepchild of the surviving spouse. The surviving spouse receives the first twenty thousand dollars plus one-half of the balance of the estate and the remainder to the stepchild per stirpes;

(D)       Surviving spouse and two or more stepchildren of the surviving spouse. The surviving spouse receives 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 estate to the spouse and the remainder to the children equally, per stirpes; For example, if the spouse has at least one child from the decedent, they get $60,000 plus one-third.  If not, then the surviving spouse gets $20,000 and one-third.  The children would share two-thirds;

(E)       Surviving spouse no children or grandchildren. The surviving spouse receives the whole estate;

(F)       No spouse, children or grandchildren.  The estate goes to the deceased person’s parents or surviving parent;

(G) No spouse, children, grandchildren or parents. The estate passes to the deceased person’s brothers and sisters, whether of the whole or of the half blood of the deceased per stirpes;

(H)       No brothers, sisters, nieces, or nephews. The estate would pass one-half to the paternal grandparents of the deceased equally, or to the survivor of them per stirpes, and one-half to the maternal grandparents of the deceased equally, or to the survivor of them per stirpes;

(I)         No grandparents. The estate would filter out one-half to the aunts, uncles or cousins on one side per stirpes and one half to the other side per stirpes.  If none of these people exist, then to the next of kin of the deceased;

(J)        No next of kin. The estate passes to the step children per stirpes.

(K)       Nobody. The estate passes to the State of Ohio.

The administrator must be from the State of Ohio.

This basic process is the same for the selection of the guardians for the minor children.  A guardian must be a resident of the State of Ohio and also a resident of the county where the ward resides.  There are four exceptions to this rule:

• The guardian is named in the will
• The guardian is selected by a minor who is over age 14
• The guardian is named in a power of attorney

The matter is set for a hearing.  Everyone who is an heir at law would receive notice by certified mail or waives notice.  For example, if a dad died, the heirs at law would be all of his natural and adopted children.

If all of the heirs consent to the appointment of the administrator, then the hearing is not necessary and the Court will appoint that person.  The Court will conduct a hearing to determine the suitability of the applicant to serve as administrator or pick one if two or more apply to serve as the administrator.

If you would like a free consultation, contact us with questions.

The Probate Court issues the executor “Letters of Authority”.  This is an official Court order certified by Probate Court that the person named is the executor of the estate.  The executor uses this Letter of Authority to transact business on behalf of the estate.  The executor can close bank accounts, sell assets, pay bills, and do all things necessary to administer the estate in accordance with the terms of the will.