Probate Estate administrations can easily turn into puzzles that can be difficult to unravel.  The Executor, the person nominated in the Will to administer the Estate, has a fiduciary duty to ensure that the assets are distributed to the correct beneficiaries.  If they fail in this duty, they can be sued and held personally liable. Therefore, the Executor must take their duties seriously and get legal assistance, especially when things get complicated. So, what do we mean by a puzzle?

Theoretically, it should be easy for the Executor to divide and distribute the assets if the Will states 50% to daughter Joan, 25% to son Joseph and 25% to daughter Maria.  If there is $120,000 in the Probate Estate to divide, the daughter gets $60,000.00 and Joseph and Maria each get $30,000.00.  But what if it is not that simple?

Example 1

The Will gives everything to the decedent's 3 children equally. One of the children predeceased the decedent. What happens to their share? Hopefully the Will addresses that by including “per stirpes” or “per capita” in the clause.  Sometimes you might even see the clause “by representation.” In simple terms, per capita means, if the child/beneficiary does not survive the testator, that child's/beneficiary's share is then split between the surviving children/beneficiaries. Whereas, per stirpes, the child/beneficiary that does not survive the testator, their share goes to their lineal descendants.  Finally, by representation means that everyone in a given generation will receive and equal share.

• EXAMPLE OF PER STIRPES: Father (testator) leaves everything to his 3 children equally. Child 1 predeceases his father and Child 1 has 2 surviving children (Grandchild 1 and Grandchild 2). These 2 surviving children of Child 1, then split equally, their father's one-third interest. Therefore, if Father left Child 1 $120,000 with a “per stirpes” designation and Child 1 died before his Father, Grandchild 1 & 2 would each get $60,000.00.

Note: The term “per stirpes” is a Latin term that means “By the Root” or “Down the Line”.  It means inheriting property by a right of a deceased ancestor.

• EXAMPLE OF PER CAPITA: Father (testator) leaves everything to his 3 children equally. Child 1 predeceases his father and Child 1 has 2 surviving children. Child 1's one-third interest remains in “the original pot” and the 2 surviving children of our decedent each receive one-half of their father's (testator's) estate. Therefore, if Father left his 3 children $120,000 with a “per capita” designation and Child 1 died before his father, Grandchild 1 & 2 would each get nothing.  Father's entire $120,000 would be split equally between his surviving 2 children ($60,000 each).

If ALL 3 of Father's children died before him, then Child 1's children would be able to inherit.  Their share would ultimately depend on how many children Child 2 and Child 3 had that survived Father.  All                         Grandchildren would inherit an equal share of the $120,000.

          Note: The term “per capita” is a Latin term that means “Per Head”.

• EXAMPLE OF PER REPRESENTATION: Father (testator) leaves everything to his 3 children equally. Child 1 predeceases his father and Child 1 has 2 surviving children (Grandchild 1 and 2).  If this happens, then Grandchild 1 & 2 inherit Child 1's share.  Therefore, if Father left Child 1 $120,000 with a “per representation” designation and Child 1 died before his father, Grandchild 1 & 2 would each get $60,000.00.

However, if Child 2 also predeceased Father leaving 1 child (Grandchild A), then all grandchildren would receive an equal share.  So, if there $120,000 total to distribute, Child 3 would get $40,000 (1/3 of the                 total), and each grandchild would get $26,666 (1/3 of $80,000 – the share of the 2 predeceased children divided by the number of grandchildren).

           Note: The term “by representation” means “By Generation”.

Example 2

One of the biggest misconceptions is that if there is a surviving spouse, that surviving spouse will receive all of the decedent's assets under any circumstance. This is not true in Ohio.  If there is no Will and the surviving spouse is the biological or adopted parent of all of the decedent's adult children, then the spouse receives all of the decedent's probate assets. Also, if the surviving spouse is the biological or adopted parent of all of the minor children, then the spouse receives the entire estate. The concept behind this is that the surviving spouse will be using the inherited funds to care for “their children”. If all of the children are adults, they should have means to provide for themselves.

On the other hand, if the surviving spouse is not the biological or adopted parent of 1 or more of the decedent's children whether adult children or minor children, the surviving spouse does not receive 100%, if there is no Will.  The premise behind this is to provide for the surviving spouse, but to also provide for the children of the decedent that are not children of the surviving spouse. For example, if there is a surviving spouse and more than one child of the decedent (or their lineal descendants) surviving, then if the surviving spouse is the parent of at least one (but not all) of the decedent's children, they get the first $60,000 plus 1/3 of the balance of the estate.  The decedent's children from another parent, would split the remaining 2/3 of the estate.  If the surviving spouse is not the parent of any of the decedent's children, then they would get $20,000 plus 1/3 of the balance of the estate (the remaining 2/3 would be split between the decedent's children).

We have seen these scenarios come into play more often in the past years with more and more blended families. The concept behind this is to make sure that the decedent's children are treated fairly and equitably when there is no Will. This division of assets, however, is not necessarily what the decedent wanted.  Since they did not have a Will, they did not get to decide and their family was left with the division that Ohio law dictates.

Conclusion

No matter what your circumstances are, it is always best to have a Last Will and Testament written by a professional that understands all of these nuances to solidify in a written legal document, your specific intentions for the division of your property. You may have made those intentions known to family and/or friends, but unless they are memorialized in your Will they cannot be adhered to.

If you are interested in having a Last Will and Testament to assure that your wishes after you pass away are exactly what you intended, or on the other hand, if you find yourself as a next of kin and/or beneficiary in an estate and would like guidance/assistance in making sure that your rights and interest are protected, please contact us at Ibis Legacy Law, LLC at 216-991-6200 for assistance.  If you prefer to send an email, you can reach our Probate Paralegal Tracy Stout at [email protected] or Attorney Rebecca Yingst Price at [email protected].  We regularly practice in all Probate Courts in Northeast Ohio including Cuyahoga County, Summit County, Portage County, Lake County, Geauga County, Ashtabula County and Lorain County.  If you need help with a probate estate in another county of Ohio, we can help as well!

Disclaimer: This content is for informational purposes only and is not intended to provide, nor should it be relied upon as, legal advice, nor does the receipt of this content create an attorney-client relationship.