Wills And Intestate Successoon

Question 1

Three ways property passes at death

Answer 1

1. Will
2. Statue of intestate succession
3. Will Substitute- outside probate

Question 2

heirs

Answer 2

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

Question 3

when does intestacy apply?

Answer 3

1. D dies in intestate
2. d dies testate but the will does not dispose of the entire estate
3. d’s will is successfully contested and there is no earlier will in effect
4. if the D has a pretermitted heir

Question 4

share of surviving spouse: entire estate

Answer 4

1. if not formally married, there is no surviving spouse. Ohio dies not recognize common law marriage after 1991
2. if decedent is survived by spouse and no descendents, the entire estate passes to S
3. 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)

Question 5

when S and one child of D from another relationship

Answer 5

S receives the first 20K plus 1/2 of the remainder

Question 6

surviving spouse + two or more children from another relationship

Answer 6

S receives 20K + 1/3 of the remainder

Question 7

Surviving spouse + children of D+S and children of just D

Answer 7

S receives 60K + 1/3 of remainder

Question 8

shares of descendants

Answer 8

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

Question 9

shares of other family member

Answer 9

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

Question 10

adopted children

Answer 10

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

Question 11

nonmarital children

Answer 11

1. 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
2. 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

Question 12

designated heirs

Answer 12

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

Question 13

words of disinheritance in a will

Answer 13

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

Question 14

survivorship

Answer 14

must survive the D by 120 hours otherwise will be treated as having predeceased the D

Question 15

Ohio Slayer Statute

Answer 15

1. a slayer may not benefit from a death caused by the intentional or felonious act.
2. the property will pass as though the slayer predeceased the victim
3. 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
4. applies to probate and nonprobate property
5. 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

Question 16

disclaimer

Answer 16

no one can be forced to accept property, whether by will, intestate succession, operation of law, or beneficiary designation

1. can disclaim all or part of the property by diclaiming it in a signed writing
2. disclaimer is irrevocable and property passes as if the disclaimant predeceased the D
3. can disclim for tax reasons, cannot disclaim with the intent to defraud the creditor
4. must disclaim within 9 months of the D’s death federally, but the 9 month rule is not the ohio state rule.
5. a guardian for incompetent or infant or a personal representative of the D may disclaim on behalf of a ward for the D

Question 17

advancement

Answer 17

1. 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
2. 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
3. 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.
4. if the advancement is greater than the intestate share, the donee does not have to return the excess
5. the advancement does not apply to the inheritance of the desendants of the donee

Question 18

satisfaction

Answer 18

applies to testate estates

1. applies to general legacies (gift of money), not usually residuary devises
2. depends on the Testator’s intent
3. a writing is not required
4. where there is a gift and the will treats all children equally there is a presumption that there is partial ademption by satisfaction

Question 19

testamentary capacity

Answer 19

at the time of existence, the testator must be able to

1. understand the nature of the act in which she is engaged (that the will will dispose of her property at death)
2. comprehend generally the nature and extent of her property
3. hold in her mind the names and identities of those who have a natural claim on her bounty
4. appreciate her relationship to the members of her family

Question 20

factors not determinative of capacity

Answer 20

T cannot read or write, old frail weak, bedridden, generally in poor health, an unnatural disposition of the estate was made poor memory etc

Question 21

if T is an addict or an alcoholic, suffering an insane delusion or adjudicated incompetent, can they have capacity

Answer 21

1. yes as long as they pass the four part test at the time of execution.
2. Senile or insane: can pass during a lucid interval.
3. 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
4. if adjudicated incompetent, there is a presumption of the lack of capacity that can be overcome

Question 22

undue influence

Answer 22

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

Question 23

ante-mordem probate:

Answer 23

declaration of a will’s validity of a will during the testator’s lifetime

1. the T may petition the probate court for a judgement declaring the validity of her will
2. the petition must name as parties all beneficiaries under the will, and all persons who would inherit from T if T dies intestate
3. 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
4. generally after t’s death the will cannot be contested on those grounds
5. a will declared valid under these proceedings cannot be modified by codicil unless the codicil is declared valid under this procedure

Question 24

fraud in wills

Answer 24

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

Question 25

who can make a will?

Answer 25

must be 18, of sound mind, and not under restraint at the time of execution

Question 26

execution requirements for a will

Answer 26

applies to a will and each codicil

1. in writing
2. signed at the end, by T or another in T;s conscious presence and at the direction of T
3. 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

Question 27

nickname, initials, mark

Answer 27

ok as long as made by t with the intent to validate the instrument as t’s will

Question 28

before T signs, there is a dispositive provision below where he signs

Answer 28

the will is invalid

Question 29

before t signs there is an administrative provision below where t signs

Answer 29

the will is valid

Question 30

after the will is executed, T adds a dispositive provision below the signature

Answer 30

will is valid, the codicil is not

Question 31

conscious presence

Answer 31

does not include telephonic, electronic or other distant communication.

Question 32

assistance in signing a will

Answer 32

valid will as long as t intends to sign it

Question 33

witnesses are minors

Answer 33

probably not valid but the harmless error rule will be considered

Question 34

witness is the attorney who drafted the will or a personal representative or trustee named in the will

Answer 34

valid will

Question 35

acknowledgement of the will

Answer 35

need not be express can be inferred from t’s conduct or the surrounding circumstances

Question 36

witness signed first

Answer 36

valid as long as all signed in a continuous transaction

Question 37

will is handwritten but not witnesses

Answer 37

not valid, holographic wills are not valid in ohio

Question 38

interested witnesses

Answer 38

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

Question 39

harmless error

Answer 39

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

Question 40

mistake in expression

Answer 40

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

Question 41

latent ambiguity

Answer 41

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

Question 42

patent ambiguity

Answer 42

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

Question 43

incorporation by reference

Answer 43

a separate document will be considered as part of a validly executed and signed will if:

1. the separate writing is in existence when the will is executed
2. the will refers to the separate writing as being in existence
3. the will expresses the intent to incorporate the separate writing
4. the will describes the separate writing sufficiently to identify it and
5. the separate writing conforms to the description in the will

Question 44

oral wills

Answer 44

may be valid in ohio if

1. made during the T’s last sickness
2. must be reduced to writing and signed within 10 days by two competent AND disinterested witnesses
3. 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
4. must be offered for probate within 3 months of t’s death
5. can only dispose of personal property
6. cannot revoke a written prior will

Question 45

revocation

Answer 45

1. by subsequent writing in compliance with will formalities
2. by destructive act: tearing ,obliterating, or destroying with the intent to revoke
3. by operation of law: divorce

Question 46

capacity for revocation

Answer 46

a T must have testamentary capacity to revoke a will

Question 47

revoke a copy of the will

Answer 47

not a valid revocation, has to be an original or a duplicate original

Question 48

revocation performed by another

Answer 48

valid if the destructive act is performed at the direction of T and in his presence or pursuant to T’s express written direction

Question 49

if will revoked is codicil?

Answer 49

probably because the codicil depends on the will for its force and effect

Question 50

if codicil revoked is the will?

Answer 50

no, revocation of a codicil does not revoke the underlying will or other codicils

Question 51

writing void or revoked in margin of will?

Answer 51

not a valid revocation, the canceling marks must touch the words of the will

Question 52

a second writing to a will

Answer 52

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

Question 53

lost will

Answer 53

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

Question 54

partial revocation by destructive act

Answer 54

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

Question 55

revocation by operation of law

Answer 55

1. subsequent marriage: ohio does not have a pertermitted spouse statute but can receive an elective share
2. 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

Question 56

other effects of divorce

Answer 56

also revokes the ex spouses:

1. interest in revocable trust
2. a designation as attorney in fact under a power of attorney
3. a designation of an ex-spouse as the beneficiary of a life insurance policy, annuity, payable on death account, retirement plan or other contract
4. joint tenancy with survivorship rights in personal property which is converted to a tenancy in common

Question 57

Dependent relative revocation

Answer 57

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

Question 58

revival

Answer 58

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

1. re-execute the will in compliance with required formalities or
2. validly execute a codicil to it that would republish it

Question 59

republication by codicil

Answer 59

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

Question 60

gifts to “heirs”or “issues”

Answer 60

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.

Question 61

gifts to adopted

Answer 61

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

Question 62

Lapse

Answer 62

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

Question 63

the antilapse statute

Answer 63

1 saves a lapsed gift for the predeceased devisee’s descendants

2. 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
3. this also applies to trusts
4. if the devise includes the phrase “if he survives me” the anti lapse statute presumptively does not apply

Question 64

lapse and class gifts

Answer 64

antilapse applies to class gifts
antilapse also applies to devises to such relatives who are dead, so surviving members of the class take

Question 65

lapse of a residuary gift

Answer 65

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

Question 66

ademption

Answer 66

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

Question 67

demonstrative and general devises and ademption

Answer 67

ademption applies only to specific gifts not to general or demonstrative gifts (a general gift paid from a specific source).

Question 68

ademption exceptions

Answer 68

1. if the gift merely changes form, no ademption (green co merges into black co, a gift of green co stocks still valid)
2. 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)
3. 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
4. guardian of property sell’s it- the devisee is entitles to the net proceeds of the sale.

Question 69

specific gift subject to lien

Answer 69

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

Question 70

abatement of legacies

Answer 70

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

Question 71

other abatement rules

Answer 71

1. gifts in the same class abate pro rata
2. 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

Question 72

spousal elective share

Answer 72

a Testator cannot with respect to probate estate, disinherit the surviving spouse

Question 73

amount of elective share

Answer 73

1. 1/3 of the net estate if two or more of T’s children or their lineal descendants survive
2. 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
3. compare with intestate share: the elective share is less than what the spouse would receive by intestate succession
4. 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

Question 74

the election

Answer 74

the share is not automatic, must file an election with the probate court

1. 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
2. if S dies before the election is made, it may not be made by the executor of S’s estate

Question 75

assets in a revocable trust and the elective share

Answer 75

in ohio the elective share will not apply to assets in a revocable trust

Question 76

other rights of a surviving spouse

Answer 76

1. 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
2. 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
3. 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
4. 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
5. 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
6. dower

Question 77

dower

Answer 77

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

Question 78

pretermitted heir

Answer 78

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

Question 79

also protected by the pretermitted heir statute

Answer 79

descendants of the pre-termitted heir and missing children or heirs (if mistakenly believed to be dead)

Question 80

share of the pre-termitted heir

Answer 80

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

Question 81

contractual wills

Answer 81

1. 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
2. the will itself may constitute a writing if it makes an adequate reference to the contract
3. 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