A well-written will often names not only primary devisees, but also makes provisions for successor devisees or heirs. It should anticipate every occurrence, including the possibility that a named devisee may predecease the decedent. A well-written will also likely include language that provides for a devise, or inheritance, to pass to a deceased devisee’s heirs. In an imperfect world, however, wills are not always well written and may have no named successor devisee.
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Ohio Code 2107.52 provides for the issue, or next of kin, of a deceased devisee to take under a will if no successor provisions are specifically stated in the will. Therefore, state code continues to allow probate of the will to include living lineal descendants of a deceased devisee. If none are located, however, and the will is unclear, a named personal representative, sometimes called executor, may file a civil action in probate court to construe the will. Depending on the outcome, the court may rule the will inadmissible. Regardless of the court’s anticipated decision, a named personal representative should always present a will to the court, however poorly written. Failure to do so may result in court-imposed penalties.
If a will is considered inadmissible to probate for any reason, yet lineal descendants or heirs may be located, one of those heirs may choose to petition the probate court for letters of administration allowing her to manage the estate of the decedent. After payment of debts, the court-appointed administrator distributes the estate assets according to Ohio's laws of descent and distribution.
Descent and Distribution
Ohio’s laws provide that if the decedent dies without a valid will, leaving a spouse and children who are also children of the surviving spouse, then all property goes to the surviving spouse. If there are children who are not also children of the surviving spouse, then property passes as dictated by Ohio law in the stated amounts and percentages. If the spouse predeceases, then property goes to all of the decedent’s children equally. If there prove to be no surviving issue of the deceased, including parents, brothers, sisters, nieces, nephews, grandparents and the like, then all property may go to the state of Ohio.
If the decedent dies leaving an undiscovered will, the named personal representative is deceased, there are no surviving devisees or surviving issue, and no one petitions the court to admit the will to probate, then certain types of property may go into Ohio’s unclaimed funds. The contents of a safe deposit box and monies owed that were never collected, such as checks made payable to the decedent that were never cashed, are types of property that may be found in the state’s unclaimed funds. Other tangible property, such as real estate, cannot be held by an unclaimed funds division and may go into a sale for nonpayment of taxes.