Administering An Estate
Without a Will
What does it mean when someone dies
When someone dies without leaving a will to spell out how they want their
money and property (called their "estate") to be distributed to
survivors, that is called dying "intestate."
is the role of the probate court?
In each of Ohio's 88 counties, there is a division of the common pleas court
called the probate division - commonly referred to as the probate court. The
primary job of the probate court is to see that all debts, taxes and other
financial affairs of people who die in that county are resolved, and that the
money and other valuable property left after debts are paid is distributed to
the persons legally entitled to receive it.
handles the estate?
When the person who died (the "decedent") leaves a will, the
probate court appoints a trusted person named in the will to serve as
"executor" of the estate. The executor works with the court to see
that the decedent's financial affairs are resolved and the remainder of his
or her estate is distributed according to the instructions spelled out in the
When someone dies intestate, and "administrator" for the estate is
appointed by the probate court. Ohio law requires that the court appoint the
surviving spouse of the decedent as administrator, and if none, or if the
spouse declines, the court will appoint one of the next of kin of the
decedent. In any event, the administrator must be a resident of Ohio. If
there is no surviving spouse or next of kin resident of the state, or if the
court finds such persons to be unsuitable, some other suitable person will be
appointed as administrator.
Before the court issues official "letters of appointment" naming an
administrator, the person named must sign an acceptance statement that spells
out his or her duties and acknowledges that the court can fine or remove an
administrator for failure to perform those duties faithfully. The
administrator must also post a bond (paid from the decedent's estate) to
cover potential losses that the estate might suffer through error or
mishandling of assets during the administration process.
are the duties of an administrator?
The duties of an administrator are similar to those of the executor of a
will, except that an administrator must follow the instructions of the
probate court and the statute of descent rather than the terms of a will. The
basic duties of an administrator are:
- Inventory and appraisal. The administrator
must identify all financial assets and property that were owned by the
decedent at the time of death,* and file an inventory with the probate
court within three months of the administrator's appointment, unless an
extension is granted.
* (Important note: Most estates include what are known as
"NON-PROBATE ASSETS" that generally DO NOT HAVE TO BE INCLUDED
IN THE INVENTORY FILED WITH THE COURT. Non-probate assets are assets
that legally pass from a decedent to a named beneficiary or to a co-owner
at the time of death, without having to go through the probate court.
Insurance policies; IRAs and pensions that are payable on death to a
beneficiary; and a home, car or bank account which the decedent owned
jointly with rights of survivorship normally fall into this non-probate
category. In many cases, the bulk of a decedent's assets may be
non-probate assets. The administrator must identify non-probate assets
for tax purposes, but these assets are not otherwise included in the
"estate" for which the administrator is responsible. When this
pamphlet refers to collecting or distributing a decedent's assets, it
refers only to those assets that are subject to probate.)
While a professional appraisal isn't required for assets the value of
which is "readily ascertainable" (for example, shares of stock
in a publicly-traded company or the balance in a bank account), items
such as jewelry, art objects, antiques, real estate and any other
possessions whose value cannot be readily established must be appraised
by a qualified person.
- Collecting assets. The administrator must
collect all assets of the decedent. This is very important (especially
to prospective heirs) because it is these assets that will be
distributed to heirs after debts and taxes have been paid. Complications
can arise in this process if assets legally owned by a decedent are in
the possession of someone else at the time of death, or if property
belonging to the decedent has been concealed or misappropriated by a
third party. Sometimes collecting assets may require the administrator
to follow through on a lawsuit in which the decedent was involved at the
time of death, or to file a lawsuit to complete a legal claim the
decedent had not fully asserted while alive. For example, if the
deceased was killed in an accident it may be necessary to file a suit to
recover damages for wrongful death.
- Payment of debts and expenses. Creditors
(people to whom the decedent or his or her estate owe money) have one
year from the date of death to present their claims against the estate.
Any claim not submitted within one year is barred forever. Claims must
be submitted to the administrator in writing, and should be sent by
registered mail, although that is not required to present a valid claim.
In addition to ordinary bills the decedent owed at the time of death,
other debts typically include expenses to keep up property; local, state
and federal taxes; hospital and funeral expenses; and expenses of
administration including probate court costs, bond premiums and fees charged
by appraisers, attorneys and the administrator.
Even after accepting a claim as valid, the administrator must be certain
there will be sufficient assets to pay all claims - including those not
yet presented. Certain debts have priority. Generally, taxes, funeral
expenses and costs and expenses of administering the estate must be paid
first. If there are sufficient cash assets in the estate to pay debts,
they will be paid out of cash. If there is not enough cash, then estate
property will be sold (personal property first and then real estate if
necessary) to raise the cash needed. If the total assets in an estate
are not sufficient to pay all of the valid debts, claimants must be paid
according to a priority schedule established by the probate court.
- Distribution of assets. When all debts,
taxes, costs and expenses of the estate have been paid, the
administrator must distribute the balance of the estate to the
decedent's heirs according to a strict percentage formula spelled out in
Ohio's statute of descent and distribution. Because an administrator can
be held personally liable for any error or excess distribution to an
heir that cannot later be recovered, expert legal advice should be
obtained before making a final disposition of estate assets. Sometimes
an administrator will make a partial distribution of certain assets
before all claims have been received. In such cases, persons receiving
early partial distributions should be advised that they may be required
to return money or property to the estate if it is needed to satisfy
What is the statute
of descent and distribution?
This is the state law that specifies what share of the probate assets in an
intestate estate shall be distributed to each of the decedent's heirs after
all valid claims have been paid. Generally speaking, the statute gives strong
preference to those persons most closely related to the decedent.
Following is a partial summary of some basic guidelines in Ohio's statute of
descent and distribution:
Please note that the following discussion uses lay person's language
rather than precise legal terms or definitions, and does not include an
extensive list of additional survivorship situations spelled out in the
- If a decedent is survived by a spouse and no
surviving children or lineal descendants of deceased children, the
entire estate goes to the spouse.
- If a decedent is survived by a spouse and
one or more children or their lineal descendants, and all the children
who survive or have lineal descendants are also the children of the
surviving spouse, the entire estate goes to the surviving spouse.
- If a decedent is survived by a spouse and
one child or the child's lineal descendants and the surviving spouse is
not the natural or adoptive parent of the child, the spouse receives the
first $20,000 from the estate plus one-half the remainder and the
balance of the remainder passes to the child or the child's lineal
- If a decedent is survived by a spouse and
more than one child or their lineal descendants, the spouse will receive
the first $60,000 if the spouse is the natural or adoptive parent of
one, but not all of the children, or the first $20,000 if the spouse is
not the natural or adoptive parent of any of the children. The spouse
will receive one-third of the balance of the estate and the children
will receive two-thirds of the balance of the estate. Lineal descendants
of a deceased child divide that child's share.
- If there is no surviving spouse, but
surviving children or their lineal descendants, each of the children
receives an equal share of the estate. Lineal descendants of a deceased
child divide that child's share.
- If the decedent has no surviving spouse or
children and no lineal descendants of deceased children, the estate goes
to his or her surviving parent(s) or, if both parents have died, in
equal shares to brothers and sisters or their lineal descendants.
The statute goes on at considerable length to cover other possible
survivorship situations not covered in this summary. Readers of this pamphlet
are urged to consult an attorney for clarification of this information, and
to seek professional advice before taking any legal action related to
administration of an estate.
What is an
Within nine months after his or her appointment, and at least once a year
thereafter unless the court specifies otherwise, every administrator of an
estate is required to file a report called an "administrator's
account" with the probate court. This account must include an itemized
statement of all receipts, disbursements and distributions made by the
administrator during the reporting period. It must also list all estate
assets and investments in possession of the administrator as of the date of
the account, and show any changes in investments since the previous report.
When distribution of all estate assets has been completed, the administrator
files a "final and distributive" account with the court and is
released from his or her duties.
characteristics of an effective administrator?
One of the keys to being an effective administrator is to be highly
organized. In the administration of a decedent's estate, it is essential to
keep very careful records and to carry out all procedures required by the
probate court in an orderly manner. It is also important to maintain a
positive relationship with the decedent's heirs. This is especially true when
the administrator is one of several surviving relatives of the decedent. An
administrator will encounter far fewer problems and complications if he or
she keeps all the decedent's heirs informed of what is going on and treats
them as equals.
Who should assist
Serving as an administrator involves serious legal responsibilities, and can
expose you to major financial liability if claims and assets are not properly
handled. If you are appointed to serve as administrator of an estate, don't
rely on casual advice from friends and family members regarding your duties
to the court and the decedent's heirs. A lawyer can provide you with trained
legal advice and professional judgment regarding the complicated laws
involved, to help you avoid pitfalls and make the proper decisions.