General DefinitionAny part of the decedent's estate not validly disposed of by will.
Order of DistributionWhen a person dies intestate having title or right to any personal property, or to any real estate or inheritance, in this state, the personal property shall be distributed, and the real estate or inheritance shall descend and pass in parcenary, except as otherwise provided by law, in the following course:
- If there is no surviving spouse, to the children of the intestate or their lineal descendants, per stirpes;
- If there is a spouse and one or more children of the decedent or their lineal descendants surviving, and all of the decedent's children who survive or have lineal descendants surviving also are children of the surviving spouse, then the whole to the surviving spouse;
- If there is a spouse and one child of the decedent or the child's lineal descendants surviving and the surviving spouse is not the natural or adoptive parent of the decedent's child, the first twenty thousand dollars plus one-half of the balance of the intestate estate to the spouse and the remainder to the child or the child's lineal descendants, per stirpes;
- If there is a spouse and more than one child or their lineal descendants surviving, 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 intestate estate to the spouse and the remainder to the children equally, or to the lineal descendants of any deceased child, per stirpes;
- If there are no children or their lineal descendants, then the whole to the surviving spouse;
- If there is no spouse and no children or their lineal descendants, to the parents of the intestate equally, or to the surviving parent;
- If there is no spouse, no children or their lineal descendants, and no parent surviving, to the brothers and sisters, whether of the whole or of the half blood of the intestate, or their lineal descendants, per stirpes;
- If there are no brothers or sisters or their lineal descendants, one-half to the paternal grandparents of the intestate equally, or to the survivor of them, and one-half to the maternal grandparents of the intestate equally, or to the survivor of them;
- If there is no paternal grandparent or no maternal grandparent, one-half to the lineal descendants of the deceased grandparents, per stirpes; if there are no such lineal descendants, then to the surviving grandparents or their lineal descendants, per stirpes; if there are no surviving grandparents or their lineal descendants, then to the next of kin of the intestate, provided there shall be no representation among such next of kin;
- If there are no next of kin, to stepchildren or their lineal descendants, per stirpes. Sec. 2105.06.
If no person is entitled to inherit under Ohio law the property will escheat to the State. Sec. 2105.06(K).
Common Law or Community PropertyOhio is a common law, elective share state.
CapacityA person of the age of eighteen years, or over, of sound mind and memory, and not under restraint, may make a will. Sec. 2107.02.
DraftingExcept oral wills, every last will and testament must be made in writing, but may be handwritten or typewritten. The will must be signed at the end by the testator making it or by some other person in the testator's conscious presence and at the testator's express direction, and be attested and subscribed in the conscious presence of the testator, by two or more competent witnesses, who saw the testator subscribe, or heard the testator acknowledge the testator's signature.
For purposes of this section, "conscious presence" means within the range of any of the testator's senses, excluding the sense of sight or sound that is sensed by telephonic, electronic or other distant communication. Sec. 2107.03.
No person under eighteen years of age may witness a will executed pursuant to or an agreement to make a will or to make a devise or bequest by will. Sec. 2107.06.
If a devise or bequest is made to a person who is one of only two witnesses to a will, the devise or bequest is void. The witness shall then be competent to testify to the execution of the will, as if the devise or bequest had not been made. If the witness would have been entitled to a share of the testator's estate in case the will was not established, he takes so much of that share that does not exceed the bequest or devise to him. Sec. 2107.15.
BeneficiariesA beneficiary includes, in the case of a decedent's estate, an heir, legatee and devisee and, in the case of a trust, an income beneficiary and a remainder beneficiary.
- By the testator by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
- By some person, at the request of the testator and in the testator's presence, by tearing, canceling, obliterating, or destroying it with the intention of revoking it;
- By some person tearing, canceling, obliterating, or destroying it pursuant to the testator's express written direction;
- By some other written will or codicil, executed as prescribed by this chapter;
- By some other writing that is signed, attested, and subscribed in the manner allowed by law. Sec. 2107.33(A).
A testator's revocation of a will is valid only if the testator, at the time of the revocation, has the same capacity as the law requires for the execution of a will. Sec. 2107.33(G).
Naming of ExecutorWhen a will is approved and allowed, the probate court will issue letters testamentary to the executor named in the will or to the executor nominated by holders of a power as described in Sec. 2107.65, or to the executor named in the will and to a co-executor nominated by holders of such a power, if he is suitable, competent, accepts the appointment, and gives bond if that is required. If no executor is named in a will, or if the executor named in a will or nominated pursuant to such a power dies, fails to accept the appointment, resigns, or is otherwise disqualified and the holders of such a power do not have authority to nominate another executor or no such power is conferred in the will, or if such a power is conferred in a will but the power cannot be exercised because of the death of a holder of the power, letters of administration with the will annexed shall be granted to a suitable person or persons, named as devisees or legatees in the will, who would have been entitled to administer the estate if the decedent had died intestate, unless the will indicates an intention that the person or persons shall not be granted letters of administration. Otherwise, the court must grant letters of administration with the will annexed to some other suitable person. Sec. 2113.05.
Administration of the estate of an intestate shall be granted to persons mentioned in this section, in the following order:
- To the surviving spouse of the deceased, if resident of the state;
- To one of the next of kin of the deceased, resident of the state.
If the persons entitled to administer the estate fail to take or renounce administration voluntarily, they will be cited by the probate court for that purpose. If there are no persons entitled to administration, or if they are for any reason unsuitable for the discharge of the trust, or if without sufficient cause they neglect to apply within a reasonable time for the administration of the estate, their right to priority shall be lost, and the court must commit the administration to some suitable person who is a resident of the state, or to the attorney general or the attorney general's designee, if the department of job and family services is seeking to recover medical assistance from the deceased. Such person may be a creditor of the estate. Sec. 2113.06.
Submission of WillA will may be deposited by the maker, or by some person for the maker, in the office of the judge of the probate court in the county in which the testator lives. The will must be safely kept until delivered or disposed. The judge, on being paid the fee of $25, must receive, keep and give a certificate of deposit for the will. Sec. 2107.07.
If real or personal estate is devised or bequeathed by a last will, the executor, or any interested person, may cause the will to be brought before the probate court of the county in which the decedent was domiciled. By citation, attachment, or warrant or, if circumstances require it, by warrant or attachment in the first instance, such court may compel the person having the custody or control of such will to produce it before the court for the purpose of being proved. If the person having the custody or control of the will intentionally conceals or withholds it or neglects or refuses to produce it for probate without reasonable cause, he may be committed to the county jail and kept in close custody until he produces the will. This person also will be liable to any party aggrieved for the damages sustained by such neglect or refusal. Sec. 2107.09.
NotificationsWhen a will has been admitted to probate, the fiduciary for the estate must, within two weeks of the admission of the will to probate, give a notice to the surviving spouse of the testator, to all persons who would be entitled to inherit from the testator if the testator had died intestate, and to all legatees and devisees named in the will. The notice must mention the probate of the will and, if a particular person being given the notice is a legatee or devisee named in the will, must state that the person is named in the will as beneficiary. A copy of the will admitted to probate is not required to be given with the notice. Sec. 2107.19.
InventoryWithin three months after the date of the executor's or administrator's appointment, unless the probate court grants an extension of time for good cause shown, the executor or administrator must file with the court an inventory of the decedent's interest in real estate located in this state and of the tangible and intangible personal property of the decedent that is to be administered and that has come to the executor's or administrator's possession or knowledge. The inventory must set forth values as of the date of death of the decedent. If a prior executor or administrator has done so, a successor executor or administrator need not file an inventory, unless, in the opinion of the court, it is necessary. Any asset, the value of which is readily ascertainable, is not required to be appraised but must be included in the inventory. Sec. 2115.02.
Dower, Elective Share, Exempt Property and the Family AllowanceA surviving spouse is entitled to a life estate (dower) in 1/3 of the real property of which the consort was seized as an estate of inheritance at any time during the marriage. Such dower interest shall terminate upon the death of the consort except:
- To the extent that any such real property was conveyed by the deceased consort during the marriage, the surviving spouse not having relinquished or been barred from dower therein;
- To the extent that any such real property during the marriage was encumbered by the deceased consort by mortgage, judgment, lien, except tax lien, or otherwise or aliened by involuntary sale, the surviving spouse not having relinquished or been barred from dower therein. If such real property was encumbered or aliened prior to decease, the dower interest of the surviving spouse therein shall be computed on the basis of the amount of the encumbrance at the time of the death of such consort or at the time of such alienation, but not upon an amount exceeding the sale price of such property.
A surviving spouse may elect to refuse to take under the will and take an elective share under Sec. 2106. However, taking the elective share prohibits the surviving spouse from claiming a right of dower. Sec.2103.2(B).
Also, the surviving spouse is entitled to an interest in up to two automobiles that are not transferred to the surviving spouse due to joint ownership with right of survivorship. Sec. 2106.18. The survivor is also entitled to one watercraft and one outboard motor. Sec. 2106.19.
The surviving spouse, minor children, or both are entitled to receive, $40,000 as an allowance for support. If the surviving spouse selected two automobiles under section 2106.18, the allowance will be reduced by the value of the automobile having the lower value of the two automobiles so selected. Sec. 2106.13.
Debts and DistributionsThe probate court on its own motion may, and on motion of the executor or administrator must, assign all claims against the estate that have been presented and any other known valid debts of the estate for hearing on a day certain. Sec. 2117.17.
Every executor or administrator shall proceed with diligence to pay the debts of the decedent and shall apply the assets in the following order:
- Costs and expenses of administration;
- An amount, not exceeding $4,000, for funeral expenses that are included in the bill of a funeral director, funeral expenses other than those in the bill of a funeral director that are approved by the probate court, and an amount, not exceeding three thousand dollars, for burial and cemetery expenses, including that portion of the funeral director's bill allocated to cemetery expenses that have been paid to the cemetery by the funeral director.
- The allowance for support made to the surviving spouse, minor children, or both under Sec. 2106.13 of the Revised Code;
- Debts entitled to a preference under the laws of the United States;
- Expenses of the last sickness of the decedent;
- If the total bill of a funeral director for funeral expenses exceeds $4,000, then, in addition to the amount described, an amount, not exceeding $2,000, for funeral expenses that are included in the bill and that exceed $4,000;
- Personal property taxes, claims made under the Medicaid estate recovery program and obligations for which the decedent was personally liable to the state or any of its subdivisions;
- Debts for manual labor performed for the decedent within twelve months preceding the decedent's death, not exceeding $300 to any one person;
- Other debts for which claims have been presented and finally allowed. Sec. 2117.25.
Tax RateThe Ohio estate tax was repealed effective January 1, 2013.
Income Tax Charitable Deductions and/or Credits
No deduction is allowed for charitable gifts.
Gift Annuity Requirements
Ohio, a "silent" state, does not specifically address charitable gift annuities.