Wills And Intestate Successoon Flashcards
Three ways property passes at death
- Will
- Statue of intestate succession
- Will Substitute- outside probate
heirs
persons entitled to inherit probate property from a person who dies without a will under the intestacy statues
prospective heirs are persons who would be heirs if the testator dies intestate- they have a mere expectancy that cannot be released
surviving spouse have more than a mere expectancy but not full property rights, they can release their rights
when does intestacy apply?
- D dies in intestate
- d dies testate but the will does not dispose of the entire estate
- d’s will is successfully contested and there is no earlier will in effect
- if the D has a pretermitted heir
share of surviving spouse: entire estate
- if not formally married, there is no surviving spouse. Ohio dies not recognize common law marriage after 1991
- if decedent is survived by spouse and no descendents, the entire estate passes to S
- if decedent is survived by S and one or more descendants who are also the descendants of S and D has no descendants of another relationship, all to S (even if S has other descendants from another relationship)
when S and one child of D from another relationship
S receives the first 20K plus 1/2 of the remainder
surviving spouse + two or more children from another relationship
S receives 20K + 1/3 of the remainder
Surviving spouse + children of D+S and children of just D
S receives 60K + 1/3 of remainder
shares of descendants
inherit the estate that does not pass to the SS. divided per capita with representation.
or per stirpes
the estate is divided into shares at the first generation where there is a survivor. divided per capita and then divided among their descendants by representation
shares of other family member
if no SS and no descendants, the estate passes to D’s parents
if no parents- to brothers and sisters
if no brothers and sisters: grandparents and their descendants (aunts uncles, nieces, nephews)
If no grandparents: next of kin, closest blood relative
if no next of kin: escheats to the state
adopted children
are treated the same as naturally born children (can inherit from and through parents)
generally adopted children cannot inherit from or through their natural parents and the natural parents cannot inherit from or through them but there are exceptions:
1. the natural parent dies without his parental rights having been terminated, the other natural parent remarries, and the new spouse adopts but if there had been a divorce and the first parent gave up their rights, then no inherit
nonmarital children
- can inherit from and through the mother but may inherit from and through the father only if paternity has been established.
can be est through judicial proceeding or acknowledgement - there is a presumption that the mother’s husband is the child of the father if the child was born within 300 days after the termination of the marriage
in ohio- unclear whether paternity may be established after the fathers death by DNA testing or other means
designated heirs
a person may make a written declaration before a probate judge designating an heir. if the designator dies intestate, the designated heir will inherit as if he were D’s child but cannot inherit through D and their children cannot inherit if predesease
the designation can be revoked
words of disinheritance in a will
if there are words of disinheritance but part of the will passes by intestacy. if the person who inherits by intestacy is the one disinherited, they still inherit regardless of the words
survivorship
must survive the D by 120 hours otherwise will be treated as having predeceased the D
Ohio Slayer Statute
- a slayer may not benefit from a death caused by the intentional or felonious act.
- the property will pass as though the slayer predeceased the victim
- the statute applies to one who is convicted of, pleads guilty to, or by reason of insanity is found not guilty of the murder or voluntary manslaughter of the decedent. Also those who are indicted but incompetent to stand trial
- applies to probate and nonprobate property
- forfeiture can also occur under common law even if the statute is not applicable, it can be established in a civil proceeding by a preponderance of the evidence
disclaimer
no one can be forced to accept property, whether by will, intestate succession, operation of law, or beneficiary designation
- can disclaim all or part of the property by diclaiming it in a signed writing
- disclaimer is irrevocable and property passes as if the disclaimant predeceased the D
- can disclim for tax reasons, cannot disclaim with the intent to defraud the creditor
- must disclaim within 9 months of the D’s death federally, but the 9 month rule is not the ohio state rule.
- a guardian for incompetent or infant or a personal representative of the D may disclaim on behalf of a ward for the D
advancement
- at common law it was presumed that parents wanted to treat their kids equally, so a lifetime gift was considered an advancement against their inheritance
- modern: there is no presumption, it is not an advancement unless there is a contemporaneous writing of the donor setting forth that intent or a non contemporaneous writing of the donee acknowledging the gift as an advancement
- If it is an advancement, there is a process called hotchpot in which the gift is added back to the estate before it is divided and the advancement is treated as already being received.
- if the advancement is greater than the intestate share, the donee does not have to return the excess
- the advancement does not apply to the inheritance of the desendants of the donee
satisfaction
applies to testate estates
- applies to general legacies (gift of money), not usually residuary devises
- depends on the Testator’s intent
- a writing is not required
- where there is a gift and the will treats all children equally there is a presumption that there is partial ademption by satisfaction
testamentary capacity
at the time of existence, the testator must be able to
- understand the nature of the act in which she is engaged (that the will will dispose of her property at death)
- comprehend generally the nature and extent of her property
- hold in her mind the names and identities of those who have a natural claim on her bounty
- appreciate her relationship to the members of her family
factors not determinative of capacity
T cannot read or write, old frail weak, bedridden, generally in poor health, an unnatural disposition of the estate was made poor memory etc
if T is an addict or an alcoholic, suffering an insane delusion or adjudicated incompetent, can they have capacity
- yes as long as they pass the four part test at the time of execution.
- Senile or insane: can pass during a lucid interval.
- insane delusion: will can be set aside if the delusion was in operation at time of the execution and it affected the provisions of the will
- if adjudicated incompetent, there is a presumption of the lack of capacity that can be overcome
undue influence
a form of mental coercion that destroys the T’s free will and produces a will that reflects the desires of the influencer rather than the testator. the burden of proof is on the contestant
elements:
1. T was susceptible (the older and more weak willed, the easier to find)
2. the influencer had the opportunity to exert influence
3. improper influence was in fact exerted and
4. the will shows the result of the influence
5. a T who has a confidential relationship with a caretaker (or atty) and who devises the will to them, will have a rebuttable presumption that there was undue influence
ante-mordem probate:
declaration of a will’s validity of a will during the testator’s lifetime
- the T may petition the probate court for a judgement declaring the validity of her will
- the petition must name as parties all beneficiaries under the will, and all persons who would inherit from T if T dies intestate
- the probate court conduct a hearing to determine if the will was duly executed, t had the testamentary capacity and t was free from undue influence
- generally after t’s death the will cannot be contested on those grounds
- a will declared valid under these proceedings cannot be modified by codicil unless the codicil is declared valid under this procedure
fraud in wills
t is willfully deceived and induced by misrepresentations and deception to make, not make, or revoke a will or include a devise in a will that she would not have done but for the misrepresentation and decpetion
who can make a will?
must be 18, of sound mind, and not under restraint at the time of execution
execution requirements for a will
applies to a will and each codicil
- in writing
- signed at the end, by T or another in T;s conscious presence and at the direction of T
- witnessed in the conscious presence of T by two or more competent witnesses (doesnt matter if disinterested) who saw T sign the will or heard T acknowledge Ts signature on it
nickname, initials, mark
ok as long as made by t with the intent to validate the instrument as t’s will
before T signs, there is a dispositive provision below where he signs
the will is invalid
before t signs there is an administrative provision below where t signs
the will is valid
after the will is executed, T adds a dispositive provision below the signature
will is valid, the codicil is not
conscious presence
does not include telephonic, electronic or other distant communication.
assistance in signing a will
valid will as long as t intends to sign it
witnesses are minors
probably not valid but the harmless error rule will be considered
witness is the attorney who drafted the will or a personal representative or trustee named in the will
valid will
acknowledgement of the will
need not be express can be inferred from t’s conduct or the surrounding circumstances
witness signed first
valid as long as all signed in a continuous transaction
will is handwritten but not witnesses
not valid, holographic wills are not valid in ohio
interested witnesses
the will is valid but the devise to the interested witness is void. unless the witness would have shared in the estate under intestacy. the witness will receive the lesser of the two.
if the witness is the personal rep of the estate, it doesnt affect validity
harmless error
compliance with execution formalities is required but if the following are shown with clear and convincing evidence that there is a harmless error in the execution of the will, the error is excused:
1. the decdent prepard or caused to be prepared the document purporting to be a will
2. the decedent signed the document with the intent that it be her will
3 two or more witnesses were in the conscious presence of the decedent when she signed the will
ex. one witnesses inadvertantly forgot to sign the will
mistake in expression
if the will states the devises one way but there is clear and convincing evidence that the devises were given to the wrong people, the extrinsic evidence will not be admissible and the mistake is not corrected
latent ambiguity
is not apparent from the face of the will, extrinsic evidence will be admissible not to change the meaning of the will but to determine it
ex. devise to charles rittman, but there is no one by that name, there is a charles who lives in rittman though
patent ambiguity
apparent from the face of the will. extrinsic evidence of t’s situation and the facts surrounding the circumstances at the time of execution will be admissible to correct the error
ex. i give A twenty five dollars ($25,000)
if there is a just a blank space that was not filled in, the gift fails for uncertainty
incorporation by reference
a separate document will be considered as part of a validly executed and signed will if:
- the separate writing is in existence when the will is executed
- the will refers to the separate writing as being in existence
- the will expresses the intent to incorporate the separate writing
- the will describes the separate writing sufficiently to identify it and
- the separate writing conforms to the description in the will
oral wills
may be valid in ohio if
- made during the T’s last sickness
- must be reduced to writing and signed within 10 days by two competent AND disinterested witnesses
- the witnesses must prove that T: had testamentary capacity, was not under undue influence, and called upon someone present to bear witness to the words as t’s will
- must be offered for probate within 3 months of t’s death
- can only dispose of personal property
- cannot revoke a written prior will
revocation
- by subsequent writing in compliance with will formalities
- by destructive act: tearing ,obliterating, or destroying with the intent to revoke
- by operation of law: divorce
capacity for revocation
a T must have testamentary capacity to revoke a will
revoke a copy of the will
not a valid revocation, has to be an original or a duplicate original
revocation performed by another
valid if the destructive act is performed at the direction of T and in his presence or pursuant to T’s express written direction
if will revoked is codicil?
probably because the codicil depends on the will for its force and effect
if codicil revoked is the will?
no, revocation of a codicil does not revoke the underlying will or other codicils
writing void or revoked in margin of will?
not a valid revocation, the canceling marks must touch the words of the will
a second writing to a will
second instrument is treated as a codicil and absent express revocatory language it operates to revoke the will only to the extent it is clearly inconsistent with the will
lost will
most states: if T had possession of the will and it cannot be found at death, presumption that is was destroyed with the intent to revoke
Ohio: presumption is reversed, a lost will is admitted to probate if:
1. the proponent establishes with clear and convincing evidence that: T validly executed the will and the contents of the will and
2. no one established by preponderance of the evidence that T revoked the will
partial revocation by destructive act
cannot vary the terms of a will by additions, interlineations, obliterations, erasures, or other changes unless the changes comply with required execution formalities
in ohio, partial revocation by destructive act is not valid
revocation by operation of law
- subsequent marriage: ohio does not have a pertermitted spouse statute but can receive an elective share
- divorce: unless the will provides otherwise, a divorce or annulment does not revoke the will but operates to revoke: all devises to the ex-spouse in the will and any nomination of ex spouse in the will as executor, trustee or guardian
In ohio: divorce DOES NOT revoke the devises to the relatives of the ex spouse
other effects of divorce
also revokes the ex spouses:
- interest in revocable trust
- a designation as attorney in fact under a power of attorney
- a designation of an ex-spouse as the beneficiary of a life insurance policy, annuity, payable on death account, retirement plan or other contract
- joint tenancy with survivorship rights in personal property which is converted to a tenancy in common
Dependent relative revocation
an equitable doctrine that has not been adopted or rejected in ohio that allows the court to disregard a revocation that was based on a mistake but only if doing so would be more consistent with the testator’s intent than upholding the revocation
revival
if a testator destroys a 2nd will with the intent to revive the 1st will, the revocation will not revive the will, to revive the T would need to
- re-execute the will in compliance with required formalities or
- validly execute a codicil to it that would republish it
republication by codicil
if an interested witness was present at the first signing of the will, but a later codicil is witnessed by two disinterested witnesses and the will is republished, the gift to emma will not be void
gifts to “heirs”or “issues”
sometimes the context of the words heirs can be used to determine what the t meant, sometimes it means heirs or issue and sometimes children.
gifts to adopted
any gift to heirs or children or grandchildren will include adopteds unless the will clearly expresses a contrary intention
However, the gift does not include persons adopted as adults unless the instrument refers to the adopted person by name, or states that persons adopted as adults are included
Lapse
occurs if a beneficiary dies before the testator. In this case the gift will fail and if the will addresses that contingency, it will control. if not the anti-lapse statute may apply
the antilapse statute
1 saves a lapsed gift for the predeceased devisee’s descendants
- the predeceased has to be a grandparent, descendant of a grandparent, or a stepchild of T and at lease on descendant of the predeceased must survive the T by 120 hours
- this also applies to trusts
- if the devise includes the phrase “if he survives me” the anti lapse statute presumptively does not apply
lapse and class gifts
antilapse applies to class gifts antilapse also applies to devises to such relatives who are dead, so surviving members of the class take
lapse of a residuary gift
if the residue is left to two or more devisees and one of them pre-deceases T and the gift is not saved by the anti-lapse statute, the other residuary devisees take the entire residuary estate
ademption
specifically devised property not in the estate at death: the disposition, loss or destruction during T’s lifetime of the subject matter of a specific gift so that it does not exist as past of the estate at T’s death causes ademption by extinction and the devisee takes nothing
demonstrative and general devises and ademption
ademption applies only to specific gifts not to general or demonstrative gifts (a general gift paid from a specific source).
ademption exceptions
- if the gift merely changes form, no ademption (green co merges into black co, a gift of green co stocks still valid)
- statutory exception in a note secured by a mortgage (if blackacre goes to Ann, but T sells but has a note and mortgage, the note and mortgage go to ann)
- if devised property is insured and is destroyed or the property is condemmed-the devisee still received the land and any remaining improvements and the insurance proceeds only to the extent that they are unpaid on T’s death
- guardian of property sell’s it- the devisee is entitles to the net proceeds of the sale.
specific gift subject to lien
ohio does not follow the exoneration of liens common law. Unless a will specifically directs the payment of the lien, a specific devisee takes the gift subject to the lien
abatement of legacies
if the estate is insufficient to 1)pay the T’s debts, funeral expenses and the costs of administering the estate and 2) to satisfy the gifts under T’s will, the abatement rules will determine who bears the shortfall
generally: debts, funeral expenses and administrative expenses come first then the residue abates, then general gifts and then specific gifts
other abatement rules
- gifts in the same class abate pro rata
- a demonstrative gift is treated as a specific gift to the extent that the property from which it is to be paid from is in the estate and as a general gift if the source is insufficient
spousal elective share
a Testator cannot with respect to probate estate, disinherit the surviving spouse
amount of elective share
- 1/3 of the net estate if two or more of T’s children or their lineal descendants survive
- 1/2 of the net estate if T was not survived by any descendants or was survived only by one child or his lineal descendants
- compare with intestate share: the elective share is less than what the spouse would receive by intestate succession
- source: the elective share is first satisfied from assets left to the spouse under the will if any, the balance is paid from other estate assets in accordance with the rules of abatement
the election
the share is not automatic, must file an election with the probate court
- if the SS is incapacitated, the court may make an elective share on S’s behalf but only if necessary to provide adequate support for S during S’s remaining life expectancy
- if S dies before the election is made, it may not be made by the executor of S’s estate
assets in a revocable trust and the elective share
in ohio the elective share will not apply to assets in a revocable trust
other rights of a surviving spouse
- mansion house: as part of the SS’s intestate share he or she may elect to take the decedent spouses interest in the family residence including household goods contained in the house
- spouse has the right to live in the mansion house for 1 year unless the sale of the house id required for payment of debts
- support allowance: the SS is entitled to a support allowance of 40K but if the decedent had minor children from another relationship, the support allowance will the equitably divided between them and the spouse
- vehicles and motor boats: unless spcifically devised by the will, the SS can select up to 2 automobiles with an aggregate value or 40K and 1 boat and 1 outboard motor
- Purchase rights: the SS may buy the property from the estate with a value of no more than 1/3 of the value of the entire estate that has not been spcifically devised by the will
- dower
dower
during a marriage, each spouse who has not relinquished it has a life estate in 1/3 of the other’s real property. if the owner dies still owning the real property, the survivor’s dower rights terminate.
if the owner conveyed the real property during life without the spouse having relinquished their dower rights, those rights are not terminated at the owner’s death
pretermitted heir
if after a will, T has a child, adopts a child, or designates an heir and if no provision is made in the will for the child or heir, then the child or heir is entitled to a share of T’s estate unless it appears from the will that T intended to disinherit the child or heir
also protected by the pretermitted heir statute
descendants of the pre-termitted heir and missing children or heirs (if mistakenly believed to be dead)
share of the pre-termitted heir
a protected heir may not reach property left to T’s surviving spouse.
heir is entitled to a share equal to what he or she would have received if 1) t had died intestate 2)t was not survived by a spouse and 3) t’s estate did not include any property left to the surviving spouse
contractual wills
- to be enforceable an agreement to make a will or to include a particular devise in a will (but not to die intestate) must be in writing and signed by the party making it
- the will itself may constitute a writing if it makes an adequate reference to the contract
- a will is revocable even if it is executed pursuant to a valid contract under which T agrees not to revoke but a revocation constitutes a breach of contract and the victim may sue for damages against the estate or the imposition of a constructive trust
