Wills

Question 1

Ademption by extinction

Answer 1

Gift fails because property specifically bequeathed or devised is not in testator’s estate at time of his death

Question 2

Requirements for “sound mind”

Answer 2

Testator must consider:

1. nature of his property;
2. natural objects of his bounty;
3. effect of signing a will;
4. document to be signed is a will;
5. that he is disposing of property after death in the doc

Question 3

What is burden of proof re: will contest?

Answer 3

Party contesting the will has burden to prove by preponderance of the evidence that will is invalid on grounds of lack of capacity.

Question 4

What is effect of codicil on a will?

Answer 4

It supplements/modifies a will. It does not replace a will unless there is express revocation language or inconsistency b/w codicil and the will.

Question 5

When is extrinsic evidence admissible?

Answer 5

If the will is not ambiguous, then it is not admissible.

Question 6

“Patent ambiguity”

Answer 6

Obvious ambiguity on the face of the document.

Question 7

“Latent ambiguity”

Answer 7

not evident from face of instrument; requires interpretation to apply provisions of the will.

Question 8

Joint will

Answer 8

one document b/w 2 or more testators that distributes property and functions as the will of every person who signed as testator

Question 9

“Per stirpes” distribution

Answer 9

Divided into as many equal shares as there are surviving children or descendants who survive deceased children.

Each surviving child gets one share.

Question 10

Complete intestacy

Answer 10

all property passes without will because testator died with no will or his will was invalid

Question 11

Partial intestacy

Answer 11

testator’s property that is not disposed of via will, like where the will doesn’t have residuary clause

Question 12

What happens when a beneficiary disclaims property under the will?

Answer 12

If person who would get residual share disclaims it, then property will be distributed as if he had died before the testator

Question 13

What happens to property if no surviving spouse?

Answer 13

Estate goes to heirs of intestate.

Question 14

What happens to property if survived by a spouse who is not parent of decedent’s children?

Answer 14

Spouse gets 20,000 and 1/3 of estate; remainder is split between surviving children

Question 15

What happens to property if survived by spouse who is parent of one child?

Answer 15

Spouse gets entire estate

Question 16

What happens to property if no spouse, children, or parents?

Answer 16

Estate goes to siblings of intestate.

Question 17

What happens to property if no spouse, children, parents, or siblings?

Answer 17

Half of estate goes to paternal and maternal grandparents.

Question 18

What happens to property if decedent has no spouse, children, or grandparents?

Answer 18

Estate goes to lineal descendants of deceased grandparents.

Question 19

What happens to property if no spouse, children, grandparents, or lineal descendants of grandparents?

Answer 19

Estate goes to next of kin.

Question 20

What happens to property if decedent dies with no next of kin?

Answer 20

Estate goes to stepchildren or their lineal descendants.

Question 21

What happens to property if decedent has NO next of kin or takers?

Answer 21

The property escheats to the state

Question 22

When is man presumed natural father of child?

Answer 22

1. man and child’s mom have been married and child is born during the marriage;
2. man and child’s mom tried to marry before child’s birth;
3. acknowledgement of paternity

Question 23

“Issue”

Answer 23

all of person’s descendants

Question 24

“Devise”

Answer 24

testamentary disposition of property

Question 25

“Devisee”

Answer 25

any person designated in will to receive property

Question 26

“Heirs”

Answer 26

persons entitled to property via intestacy

Question 27

“Distributee”

Answer 27

any person who rec’d part of estate from personal representative

Question 28

“Subscription”

Answer 28

the act of signing a will

Question 29

“Attestation”

Answer 29

the act of witnessing signature

Question 30

“Interested witness”

Answer 30

someone who will benefit from/receive property under the will. He will not receive his gift if he acts in this capacity

Question 31

Are holographic wills valid in Ohio?

Answer 31

NO. Handwritten will, to be valid, must be executed by 2 competent witnesses.

Question 32

“Lapse”

Answer 32

Gift to someone who predeceased the testator will fail.

Question 33

Ohio’s Anti-Lapse statute

Answer 33

Gift can still be valid; issue of designated person can still receive gift if the issue survives the testator by at least 120 hours

Question 34

“Gift”

Answer 34

Voluntary transfer of property without consideration

Question 35

Is delivery of keys to safety-deposit box sufficient for an effective gift?

Answer 35

No. Must arrange for donee to be admitted to the bank vault.

Question 36

Gift causa mortis:

Answer 36

gift made in fear of imminent death from a specific cause of death.

Question 37

POD Account

Answer 37

“payable on death”

Payable to one or more persons during lifetime and then to designated beneficiary.

Question 38

“Probate”

Answer 38

Judicial process to determine if testator’s will is valid.

Question 39

Ohio’s Ante-Mortem statute:

Answer 39

will can be probated when testator is still alive.

testator must initiate process and must name beneficiaries as defendants.

Question 40

Describe revocation of will executed in duplicate:

Answer 40

When one copy of will executed in duplicate is revoked, the will is revoked.

But revoking unexecuted will will NOT have effect.

Question 41

“Advancement”

Answer 41

bequest received before testator dies. Must be acknowledged to be effective.

If effective, it is subtracted from his share upon testator’s death.

Question 42

How long must you survive testator to receive gift under the will?

Answer 42

By at least 120 hours.

Question 43

Explain what happens if surviving spouse fails to make election:

Answer 43

If spouse fails to make election before end of probate or dies before probate, spouse is presumed to have elected to take under the will.

Question 44

“Mansion house”

Answer 44

Property of decedent–house, home goods, adjacent land.

You can remain there for 1 year free of charge.

Question 45

When does class close re postponed gift?

Answer 45

Class remains open until time for distribution.

Question 46

Requirement of intent to make will:

Answer 46

Testator must intend for document to act as his will. Such intent must be clear from face of the document.

Question 47

When must will contest be filed?

Answer 47

Within 3 months of certificate of notice of probate filed.

Question 48

Can creditor contest a will?

Answer 48

No. He doesn’t have standing, because he will be paid regardless of will’s existence.

Question 49

When will fraud invalidate a will?

Answer 49

Only if testator was deceived and acted on deceptive misrepresentations.

Question 50

Effect of “no contest” clause in will:

Answer 50

Ohio court can enforce such a clause.

Question 51

Will an advancement be held against the surviving child of decedent’s child?

Answer 51

No. If the decedent gives to his child an advancement and then the child dies, leaving his own child, the advancement will not apply to the child’s child.