When a person dies, one of the first questions to arise is “where does everything go?” Here is a quick overview of how assets pass at death.
Ohio statutes allow assets to be titled in such a way as to permit automatic transfer upon death with the presentation of a death certificate. Examples are:
1. Tenancy by entirety, Joint Tenancy with right of survivorship (WROS), any co-ownership with survivorship provisions.
2. The persons inheriting are the named survivors on the accounts.
Many assets are created by contract with stated beneficiaries listed in the document. Normally there is a primary beneficiary and a contingent beneficiary. Examples are:
1. Annuities, IRA’s, Payable on Death (POD or TOD), company retirement or contribution plans (401K etc.) and life insurance.
2. The persons inheriting are the named beneficiaries listed in writing by the deceased in the contract.
A Revocable Trust is written by a Grantor. The Trust may be amended or revoked during life. Upon death it becomes Irrevocable and the directions set forth in the document must be followed by the trustee.
B. An Irrevocable Trust is final upon signing. The Grantor may not change this trust. The Grantor permanently places assets into the trust. A third party is appointed to be the trustee with the power to control and administer. This is often created for tax reasons or to protect assets from nursing home expense.
C. The persons or charities receiving the property are named by the original grantor in the trust document. There can be an income beneficiary who is entitled to only the income generated while the trust remains open and a principal beneficiary who receives the assets when the trust is terminated.
By the testate or intestate statutes
A. If a person has a will, he has died testate. The will is filed in the probate court. Distribution of assets will be at the direction of the court under the terms of the will. The court appoints the person named in the will (the executor) to honor and complete the wishes of the deceased who executed the will. This process has a definite time frame, can be costly and can take a year or more to complete.
B. If a person dies without a will he has died intestate. The Ohio Statute dictates who will inherit and in what proportion. It is totally under the direction of the court to follow the statutes and appoint an administrator to compete the transfer of assets after the payment of all legitimate debts.
C. The persons inheriting are known as heirs (inheriting because they are blood relatives of the deceased) or legatees (people named in the will).
This is brief definitional overview of the many ways assets are transferred at death. Each method has a positive and a negative and one should seek legal counsel to utilize the right method for their circumstance.