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Distribution. When all debts, taxes, costs, and expenses have been paid, the balance of the estate must be distributed to the proper persons – the persons named in the will or, if there is no will, those named in the statute of descent and distribution. Distribution may be in cash, or “in kind”. Thus it may be necessary to sell the estate property even if a sale is not required to pay debts, taxes, costs, and expenses. In-kind distribution is the transfer of a particular thing or things to a beneficiary. Sometimes a will explicitly authorizes the executor to make distribution in kind. The executor or administrator will usually consult the heirs to determine if they want cash or the particular property.

When authorized by the probate court, partial distribution of the estate property may be made to one or more heirs before the estate is completely settled and closed. Partial distribution is often made when the property involved is such that it is undesirable for it to remain unused until the estate is settled (automobiles are often transferred under a partial distribution). Also, partial distribution is common in large estates which may remain open for some time. Partial distribution should not be made unless enough property will be left in the estate to pay debts, taxes, costs, and expenses. Finally, those who receive estate assets –personal property, real property, cash, cash developed from the sale of estate assets – must realize that in certain situations they may have to return these assets, or the value of the assets. Thus, claims may be made after distribution has occurred.

Accounts. When the estate is closed, the executor or administrator is required to file an account showing the estate assets, income, costs, expenses, and distribution.

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WILLS

Requirement that Will be Probated. Ohio law states that a will cannot affect the distribution of the testator’s property unless the will is filed with the probate court for purposes of administering the estate according to law.

Lost, Destroyed, or Spoliated Wills. When an original will is misplaced, destroyed, or spoiled (“spoliated”) in some way, a copy can be admitted to probate, provided: it can be proven that the will is valid and is the last will of the testator, and that the testator did not know that the will was misplaced, destroyed, or spoliated.

How Wills Are Revoked. A will can be revoked in a number of ways. The most common way is by making a new, or later, will. The latest will revokes all previous wills made by testator. A testator can also revoke a will by taking the following actions with the intention of revoking the will: canceling it; tearing it up; obliterating it; or destroying it. The testator must personally take such actions, be present when such actions are taken, or give another person written instructions to take such action on testator’s behalf. It is important to know that proof of the testator’s actions and intent is necessary where there is an apparent cancellation, tearing etc.

Wills are often amended by the conditions stated in divorce decrees or separation agreements. When a court issues its decree or order in a divorce case, or approves a settlement in a dissolution of marriage, the court’s order revokes the provisions in a will for former husbands or wives. Wills may be amended by a “codicil”, a document which meets the same requirements as an original will. Where the testator is competent, the revocation of a prior will is absolute.

Limitations on Wills; Special Provisions. The general rule is that a testator can use a will to dispose of his or her property in any way, or to any persons, the testator wants. There are important exceptions to this general rule.

While a testator can disinherit others, a testator cannot entirely disinherit his or her spouse by making a will which specifically disinherits the spouse. The law gives the surviving spouse certain choices which prevent total disinheritance of the assets which are subject to probate administration. The surviving spouse can accept the will and take whatever share of the estate the will provides, or reject the will and take whatever share he or she is entitled to under the law.

A surviving spouse is also entitled to a living allowance of $ 25,000 and to remain in the family home for one year. The surviving spouse also has the right to have one automobile which was not specifically bequeathed (given) in the will. The surviving spouse also has the right to be reimbursed for the payment of the funeral expenses of the deceased spouse.

The testator cannot leave a gift to the witnesses to the will. Such gifts are invalid, although they do not invalidate the entire will unless such persons are the only beneficiaries. The law has special provisions which automatically change a will in some situations. Where there are children born to testator after a will has been made, the general rule is that these children (called “afterborn children” or “pretermitted heirs”) are entitled to share in the estate the same as testator’s other children.

Where the testator is divorced, or granted a dissolution of marriage, the provisions in the will for testator’s former spouse are revoked.

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