3 ways property passes at death
Will (probate)
Statutes of intestate succession (probate)
Will substitute (nonprobate)
exs of will substitutes
life insurance
Joint tenancy with right of survivorship
Assets in trust that pass to the beneficiaries named in the trust instrument
Contracts
Retirement benefits
Bank arrangements
deeds
Nonprobate assets are not subject to the decedent's
if there is one or the statutes of intestate succession if there isn't one.
what is intestate succession?
Statutory method of distributing probate assets that are not disposed of by will.
who is an heir
Persons entitled, under laws of intestacy, to inherit probate property from a person who dies without a will (entitlement)
a living person cannot have heirs
who is a prospective heir
Persons who would be heirs of a living person if he died intestate (no property rights; mere expectancy)
Intestacy rules apply when part or all of decedent's (D) estate will pass by the statutes of intestate succession if
D dies intestate (without a will)
D dies testate but D's will does not dispose of his entire estate [partially intestate]
D's will is successfully contested (and there is not an earlier will that takes effect) and is denied probate;
D has a pretermitted h
who is a surviving spouse
In Ohio, a cohabitant who was not formally married to D generally is not a surviving spouse because common law marriages are no longer recognized. (common law marriage prior to 1991 = surviving spouse).
when will a surviving spouse get the entire estate?
Surviving spouse is D's sole heir; OR
All of D's descendants are also descendants of SS (note that the SS's share is not reduced if he or she had descendants from another relationship- it is only a Q of whether decedent did)
how much will the spouse get if D is survived by spouse & one child (or his descendants) from another relationship, but no children from marriage to SS.
SS gets first $20,000 and 1/2 of remaining estate
how much will the spouse get if D is survived by two or more children (or their descendants) from another relationship
SS gets first $20,00 + 1/3 remaining estate
how much will the spouse get if D is survived by SS and by one or more children from another relationship, and by one or more children of D and SS.
SS gets first $60,000 + 1/3 remaining estate
All of D's other descendants will share the remaining 2/3 by representation
If an intestate D was survived by any descendants, they will inherit
ll of the estate that does not pass to the SS.
ohio rule on shares of decedents- per capita with representaiton/per stirpes
Estate is divided into equal shares at the first generation where there is a survivor. Where a person on the first generation is deceased, that person's share is divided among their descendants "by representation
If D is not survived by SS or any descendants
estate is distributed to D's Parents
if D has no parents, then money goes to
Descendants of Parents (D's brothers, sisters, and their descendants take)
what kind of siblings inherit equally?
Note: half siblings = whole siblings & inherit equally.
If no Descendants (siblings + their kids) then
Grandparents and their Descendants
1/2 to paternal grandparents, 1/2 to maternal grandparents
If no grandparents/descendants of grandparents on one side, entire estate goes to other side
order of shares if none of the above applies
If none of the above ? Next of Kin take (closets blood relative)
If no next of Kin ? Stepchildren take.
If no stepchildren ? Escheat to the state
how are adopted children treated
Are treated just like natural born children of the adopting parents. Thus, an adopted child and her descendants can inherit from and through the adopting parents, and the adopting parents and their kind can inherit from and through the adopted child
Generally, adopted children and their descendant's cannot inherit from
or through their natural parents, and vice versa.
exception to adopted children not being able to inherit from natural parents
stepparent exception-
When natural parent dies without her parental rights having been terminated and
Surviving parent remarries and
The new spouse adopts the child, the adopted child inherits from and through the deceased natural parents as well as from
rules on adult adoptions
Common law- Cannot adopt an adult and adoption is irrevocable (see designated heirs)
OH: permits adult adoptions.
Child born out of wedlock may inherit by
intestate succession from and through his mother, but may inherit by and through father only if paternity is established
how can paternity be established
during father's lifetime by judicial proceeding or acknowledgement (acknowledgment of paternity and child support orders are conclusive evidence of paternity)
Not clear whether paternity may be established after father's death
Presumption of paternity if:
Mother has child while married or within 9 months after termination of marriage
Father and mother attempt to marry before the child's birth but the marriage was declared void and child was born within 300 days after termination
Father filed an acknowledgm
rights of Step-children and foster children
Typically enjoy no rights.
ohio rule of equitable adoption
Stepchild or foster child may be able to est. adoption by estoppel to permit the kid to inherit from or through stepparents or foster parents as though they legally adopted.
when is the ohio rule of equitable adoption invoked
Invoked where the step parents or foster parents gain custody of a child under an agreement with the birth parents that they will adopt the child.
how are posthumously children created
as a child.
how can you designate an heir
In Ohio, a person may make a written declaration before a probate judge designating an heir. The designated heir (but not his descendants) inherit from D's estate as if he were a child
designated heir taking rules
A designated heir does not take through D from D's parents.
A designated heir's children will not inherit
Unlike adoption,_____ are revocable (at any time after one year) and can designate an adult
designated heirs
A will provision that expressly disinherits an heir is ineffective if
the testator dies partially intestate. You can only disinherit a descendant by distributing your entire estate to others!
words of disinheritance- If a testator did not make a complete disposition of the estate, the undisposed-of property passes by
force of statute to the heirs and testator intent is irrelevant.
Unless the will or other governing instruments provides otherwise, to receive probate property by will or intestate succession (or to take nonprobate property), a person must survive D by
at least 120 hours (5 days)
A person not surviving by 120 hours is treated as
having predeceased D and the devise to him lapses and passes through the residuary clause or intestacy
simultaneous death rule applies to
Applies to all probate and nonprobate assets
Exception: 120-hr req. does not apply if the decedent's will or other instrument governing nonprobate property
expressly contracts around it.
what is the slayer statute
Slayer may not benefit from an intentional and felonious kill (murder & vol. mansl)
Property the slayer would have received is
forfeited and passes as if the slayer predeceased
Note: if slayer was a devisee under the victim's will, consider
anti-lapse statutes
slayer statute applies to one who is
Convicted, pleads guilty, adjudicated NG by reason of insanity, indicted but found incompetent to stand trial
what kind of assets does the slayer statute apply to
Applies to all probate and nonprobate assets
When the killing is intentional and felonious, forfeiture occurs at _____ even if slayer statute is not applicable (i.e. person was found not guilty)
common law
If there is no criminal proceeding, culpability of the slayer can be established
in a civil proceeding by a preponderance of the evidence. (OJ Simpson)
No one can be forced to
accept property, whether by will, intestate succession, operation of law, or beneficiary designation.
An intestate heir, will devisee, or other beneficiary who refuses to accept all or part of the property does so by
disclaiming the unwanted property in a signed writing
test for disclaimer
Writing
Reference the will
Describe the property interest or power to disclaim
Disclaim the interest or power
Signed by disclaimant
Must be delivered to the personal rep. or guardian, and a copy must be filed in probate ct. If an interest in real prop. is
A guardian for an incompetent or minor, and a personal rep. for a decedent may disclaim on the others behalf only
with the probate courts approval upon finding it in the best interest.
Unless governing instrument states what to do with disclaimed property, a disclaimer results in
property passing as if disclaimant predeceased D
why disclaim?
Can be used to defeat creditor's claims and avoid gift taxes
consider ___ for disclaimer
anti lapse statute
Advancements: Statutory Doctrine that applies only to
intestacy
what is an advancement
Gift made to an heir (not just kids) with the intent that the gift be applied against any share that the heir inherits from the intestate donor's estate.
Ohio: a lifetime gift is not considered an advancement unless it is
Declared as such in a contemporaneous writing by the donor or
Acknowledged as such in a writing by the donee at any time
If the gift is an advancement, the gift is added back into
the net value of the estate before calculating shares (process = "hotchpot")
If the advancement had been greater than his share under the hotchpot, that party
does not have to return the excess.
Where the person who received the advancement dies before the decedent, the advancement is
not charged against an heir of advanced individual unless the writing provides otherwise.
The value of an advancement is determined
as of the time the gift was made.
If the gift is not an advancement, it is
ignored at donors death
what is ademption by satisfaction
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary made after the execution of the will, if the testator intends the transfer to have that effect
what does ademption by satisfaction apply to?
wills and general legacies in them (money gift)
Whether a gift is in partial satisfaction of the testamentary gift depends on
Ts intent
what is the presumption with ademption by satisfaction?
If the gift is to one of T's children after the will's execution, and the will treats the kids equally, presumption that the gift was a partial ademption by satisfaction (and the value is reduced from the share of the distribution)
If the testator gives the specifically bequeathed property to the beneficiary, there is both a satisfaction of
the legacy and ademption. (even if not proved to have been intended)
A parent who abandons a minor child is not
t entitled to take from their estate.The administrator of the child's estate files a complaint for determination with the court to prohibit the parent from taking
what is abandonment
Parent failed, without justifiable cause, to communicate with the minor, care for the minor, and provide for the minor's maintenance or support for at least one yr. immediately prior to the minor's death.
requirements for creating a will
Capacity
Writing
Signature
Attestation
how does a will operate
Instrument executed with certain formalities that direct the disposition of a person's property at death.
a will cannot make a gift of
nonprobate assets i.e. life insurance proceeds, death benefits, property passing by right of survivorship, property held in trust, and real property passing by transfer on death designation affidavits.
testamentary intent for a will
Dispose his property,
That the disposition occur upon death, and
That the particular instrument carry out the disposition.
Promises to make a will in the future and ineffective deeds are not
given effect as a will.
what is a conditional will
One that provides to be operative only if a stated condition is satisfied. A court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur.
Rules of Construction
When there is no evidence of testator's intent:
favor those who take intestate
favor the construction that avoids intestacy;
favor the construction that is consistent with the perceived plan
every portion of the will should be given effect if possible
B/t inconsistent clauses, the latter is more likely
Testamentary Capacity test
At the time of execution, T must at least 18 years old and be able to
Understand the nature of the act in which he is engaged
Comprehend generally the nature and extent of his property
Know the names and identities of those who have natural claims to his
Factors not Determinative of Capacity: T may have capacity even if
T couldn't read/write, was old, frail, could not see or hear, weak, bedridden, in generally poor health, he was eccentric, had a poor memory, was forgetful and occasionally did not recognize family, or the will made an unnatural disposition; early stages
what is an insane delusion
False belief in facts that no rational person would hold based on the info. available.
an insane delusion justified setting aside the will only if it
operated at the time of the execution and affected the provisions of the will. (only the pt. of the will that is the product of the insane delusion is void; the rest stands)
Contestant must show that T would not have made the disposition but for the insan
Judicial finding of ___raises a rebuttable presumption of lack of testamentary capacity
incompetence
what is undue influence
Form of mental coercion that destroys T's free will and produces a will that reflects the desires of the influencer, rather than T
elements of undue influence
T was susceptible;
The influencer had the opportunity to exert influence (confidential relationship)
Improper influence was exerted; AND
the will shows the result of the influence
what activities do not indicate undue influence
Advice, acts of kindness, persuasion, argument, solicitation, appeals to duty, or guilt ? undue influence
burden of proof for undue influence
Initially the will contestant has BOP to prove undue influence [ 4 elements in the above test]
Will proponent must then prove T acted voluntarily and that his conduct was free from undue influence
BOP shifts to will proponent when there is a presumption o
presumption of undue influence arises where
There is a confidential, fiduciary relationship like with attorney, priest, accountant, etc.
Suspicious circumstances (although not req. in OH)
examples of suspicious circumstances for undue influence (not required in OH)
Testator's relationship w/ family changed
Will was created in secrecy or haste
Unnatural bequest
Will make in secrecy
Drastic changes in estate plan
Drastic change in familial relationships
Unjust-simply unfair
Writing a will for immediate family members
If Undue Influence is Found,
entire will is likely thrown out
what is Ante Mortem Probate
Declaration of the validity of the will during T's life
who asks for an Ante Mortem Probate
testator asks the court
what must be in the petition for ante mortem probate
All beneficiaries under the will and all persons who would inherit from T if T died intestate on date of filing petition
court considerations for ante mortem probate
Duly executed
Whether T has testamentary capacity, and
Whether T was free from undue influence
a will declared valid under ante mortem probate cannot be modified by codicil unless
the T goes to probate with the codicil and gets it declared valid
what is fraud
When T is
Willfully deceived as to the character or content of the instrument extrinsic evidence permitted to show T did not know the instrument he was signing was a will.
Induced by misrepresentation and deception to
Make, not make, or revoke a will (or
if there is fraud, the court will likely incur ______
Ts intent from extrinsic evidence
what is a codicil
Later testamentary instrument that amends, alters, or modifies a previously executed will
what is republication by codicil?
a will is treated as having been executed on the date of the last validly executed codicil thereto
Execution Requirements for Will and Each Codicil (unless harmless error rule or oral wills applies)
In writing (handwritten or typed)
Signed
Attestation & Subscription
signing requirements on a will
At the end by T or by proxy in T's conscious presence and at T's direction and
Any mark or name made by T with the intent to validate the instrument.
Dispositive provisions (not administrative) after T's signature make the entire will void.
how must a will be attested?
Witnessed and subscribed by two or more competent witnesses in the conscious presence of T. Must have seen T sign the will OR hear T acknowledge his signature.
what does conscious presence mean
T need not see the witnesses sign the will but the witnesses must be within the range of T's senses
Conscious presence ? telephonic, electronic, or other distant communication
Witnesses don't have to be together.
when is it ok for witnesses to sign before T?
Witnesses signature before T's is OK if all the signatures are made in a continuous transaction.
requirements to attest to a will
Must be at least 18 (look at harmless error rule if younger)
Competent witnesses can be interested: beneficiary under the will
if a witness is interest, what happens?
purging statute- Do not affect the validity of the will; however, devises to witnesses are void unless the witness would take by intestacy or under a prior will that he did not witness.
If so, the witness takes the lesser of what they would have received
when can an interested witness still get their entire devise?
if there is a third witness (disinterested), the interested witness gets her entire devise under the will
Compensation paid to personal representative under the will does not make that person
interested
what is a holographic will
Wholly (or where the material provisions) are handwritten and has no unattesting witnesses(unwitnessed)
when is a holographic will valid?
NOT IN OHIO, but but OH does recognize holographic wills and codicils validly executed in another state.
general rule of formalities for a will
strict compliance required
harmless error rule (will execution mistake)?
if the following are shown by clear and convincing evidence, harmless error in the execution of the will is excused
Decedent prepared or caused to be prepared the document purporting to be the will
Decedent signed the document with the intent that it be h
A will's validity is not affected by mistake that induces execution unless
there is fraud, undue influence, or mistake negates testamentary intent
If the will does not include a patent or latent ambiguity, _____ is not admissible to change the meaning of the words (no reformation)
extrinsic evidence
what is a latent ambiguity and how can it be resolved
Lang. is clear on its face but creates uncertainty when applied.
Extrinsic evidence admissible to determine the meaning (not change the meaning)
what is a patent ambiguity and how can it be resolved
Apparent from the face of the will (Ex: "I gift twenty dollars ($20,000) to X")
Tradition and Maj. view: Extrinsic evidence is not admissible.
Modern View: extrinsic evidence is admissible.
modern view on admitted extrinsic evidence for patent ambiguities?
Extrinsic evidence of T's situation and the facts and circumstances at or around the time T executed the will are admissible to determine the amount of the gift to a beneficiary
Extrinsic evidence of T's direct declarations about the gift not admissible
how can we resolve blank spaces in a will
No extrinsic evidence, gift fails for uncertainty
how can we resolve omitted provisions in a will
Extrinsic evidence is not admissible to show a provision was omitted or incorrect.
Multiple pieces of paper can be integrated into one will if:
the testator intended the papers to constitute her will; and
the papers were present at the time of the will's execution.
in integration, papers need not
Papers need not all have been written at the same time or signed by T.
integration- Physical attachment and internal coherence of pages raises a presumption that
the pages were present and that the testator intended them to be part of the will when it was executed. These req. also can be est. by the testimony of witnesses or other extrinsic evidence.
what is incorporation by reference
a separate, unsigned, unattested writing may be treated as part of the will if:
The separate writing is in existence when the will is executed (most important)
The will refers to the separate writing as being in existence
The will expresses the intent to
what are acts of independent significance
A will may dispose of property by reference to T's acts and events that have significance apart from their effect on the disposition made by the will. (ex. execution of another person's will)
when is a bequest made as an act of independent significace valid?
The bequest is valid if it has some lifetime significance other than providing for the testamentary gift.
A devise or bequest made to a trustee of an inter vivos trust is valid, notwithstanding the fact that
fact that the testator has reserved the power to amend or revoke the trust or has actually amended the trust after executing his will, and further notwithstanding the fact that the trust instrument or any amendment was not executed in accord with the Stat
when are oral wills valid
Made during T's "last sickness"
Reduced to writing and signed (subscribed) within 10 days by two competent and disinterested witnesses
Witnesses must prove T had testamentary capacity, was not under undue influence, and called upon someone present to bear
limitation on oral will validity
covers only personal property [not real property]
an oral will may not revoke a prior will
what must be present for a T to revoke his will?
T must have the testamentary capacity to revoke (intent to revoke)
methods of revocation
subsequent writing
destructive act and concurrent intent to revoke at the time of the physical act
revocation by operation of the law
cancelling marks
partial revocation
revocation on other instruments
how can a subsequent writing revoke a will?
if executed in compliance with the wills formalities
Subsequently executed instruments, unless they contain explicit revocatory language, do not revoke
prior wills, these are treated as codicils, even if labeled as will.
Subsequent writing will operate to revoke only
to the extent of inconsistent provisions.
Generally, revocation of a will also revoke
codicils to it
Revocation of a codicil does not revoke
underlying will or its codicils absent an expression of intent to the contrary
types of desructive acts that revoke a will
Physical Act: tearing, canceling, obliterating, or destroying
destructive acts must be formed on ___ to revoke
the original
how can a destructive act be performed by proxy?
1) at T's request and in T's presence; OR 2) pursuant to T's express written direction
what effect does crossing out a signature have?
revokes the entire will- shows an intent to do so
ways to revoke by operation of law
subsequent marriage and divorce
subsequent marriage- Where T executed a will prior to the marriage and failed to change it (and spouse is not included in the will) spouse can take
her elective share
Unless the will expressly provides otherwise, a divorce/separatetion/agreement does not revoke the will, BUT operates to
revoke all devises to ex-spouse in T's will and any nomination of ex-spouse as executor, trustee, or guardian
divorce does not revoke devises to ___
relatives of ex spouse
what other things does divorce revoke?
interest in T's revocable trust, designation of ex-spouse as power of attorney, designation of ex-spouse as beneficiary of a life insurance policy, payable on death account, retirement plan interest, or other K, and a joint tenancy with survivorship right
what does remarriage to the person you divorced do to a will?
Remarriage operates to revive the revoked provisions.
how can cancelling marks revoke?
Cancelling marks must touch the words of the will in order to be effective (can't write "VOID" at the top)
Generally, T cannot vary the terms of a will by additions, interlineations, obliterations, erasures, or other changes (as a codicil) unless
unless the changes comply with required execution formalities. if these changes dont happen this is just an attempt codicil
Partial revocation by destructive act are
not valid. T can revoke the entire will or none of it
OH: Does not recognize ____ by physical act.
partial revocation
Erasing or otherwise destroying part of the will still results in the will being admitted to probate, with the deletion being disregarded.
Destruction of an unexecuted copy of the will, accompanied with an intent to revoke
does not revoke the will
modern rule on lost wills
Presumption that the T destroyed the will with the intent to Revoke.
ohio rule on lost wills
Lost will is admitted to probate if the proponent establishes by clear and convincing evidence that
T validly executed the will; AND
The contents of the will (copy)
An opponent of the will can rebut this evidence by est. by a preponderance of the evidence
what is dependent relative revocation
Equitable doctrine that has not been adopted/rejected in Ohio
Allows the court to disregard or ignore a revocation that was based on mistake (law or fact) and would not have occurred but for T's mistaken belief that another disposition of his property was
As a general rule, a will, once revoked, is not revived unless
it is reexcuted or republished by codicil.
Revocation of the second will does not revive will number 1. To revive will number 1, T must:
re-execute the earlier will in compliance with formalities;
validly execute a codicil (with formalities) that would republish it.
how does republication by codicil work
Will is treated as re-executed/ republished on the date of the latest codicil.
If someone revokes a will by a second will, but then adds a codicil to the first will, the second will is
revoked by implication or "squeezed out
if trying to republish by codicil but the original will was not valid, then
A validly executed codicil may validate a previously defective will if it is clear the codicil incorp. the will or is written on the same page as the original will.
who are heirs
Persons, including spouse, entitled to take under the intestacy statutes if D dies testate
In a will, if the context so requires, heirs may be construed to mean children
what are gifts to issue
Issue = descendants not children (but may construed to mean children)
Gift to someone's heirs, children, grandchildren, issue, or descendants will, by statute, includes persons adopted as minors as well as natural born children UNLESS
the will clearly expresses a contrary intention
Gift "to the lawful issue of the blood" has been interpreted to exclude
adopted kids
requirements of a class gift?
Gift must be made to a class e.g. "children" rather than indiv. named beneficiaries (e.g. A, B, and C.) and if a member predeceases the testator, the gift lapses and will be shared among the remaining class members. The gift does not pass to the pre decea
Class does not include persons adopted as adults unless
the instrument expressly names the person or states that the class includes those adopted as adults
if the will does not address the issue, it is not clear in Ohio whether a gift in a will to heirs, children, grandchildren, issue, or descendants includes
non-marital (step) children and their descendants
If a will beneficiary dies before the testator, the gift
lapses and falls into the residuary estate unless anti-lapse statute applies.
if the will addresses lapse, that contingency, it will control - if not consider
the anti-lapse statute which will save the gift for the predeceased devisee's descendants, if it applies.
how does the anti lapse statute operate
Operates to save the gift if the predeceasing beneficiary was:
a grandparent, a descendant of a grandparent (by birth or adoption), or a stepchild of T's and left descendants who survived T by at least 120 hours
anti lapse statutes do not save gifts to
Does not save gifts to spouses, in laws, or designated heirs
If the will states, "to A if she survives me" the anti-lapse statute
presumptively does not apply
when should you discuss anti lapse?
Beneficiary dies before T
Beneficiary disclaims gift
Beneficiary intentionally kills
Beneficiary survives by less than 120 hrs.
how does the anti lapse statute work on class gifts?
If a beneficiary was a grandparent, descendant of a grandparent, or step child of T the gift passes to that person's descendants
If the relationship req. is not met, the gift lapses into the class (the surviving members of the class take)
how does anti lapse apply to the lapse of a residuary gift?
if the residue is left to two or more devisees, and the share of one of them fails (ex. one of them predeceases T and the gift is not saved by the antilapse statute), the other residuary devisees take the entire residuary estate
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is
void
what is ademption
Specifically devised property not in estate at T's death.
what is ademption by extinction?
When specifically bequeathed property is not in the Testator's estate at death (prior disposition, loss, or destruction), the bequest fails.
exceptions to ademption by extinction when bequest does not fail?
casualty insurance proceeds if paid after T's death;
condemnation award paid after T's death;
all of T's rights under an executory K on the property;
property owned by T at death as a result of foreclosure
Change in Form
If Property is Sold, Destroyed of
if property is sold, destroyed, or condemned, how does ademption by extinction work
specific beneficiary takes the sale proceeds, insurance proceeds or condemnation award but only to the extent that they are unpaid on T's death
If paid in full ? Devisee gets nothing
if a devise is sold by a guardian or attorney in fact, how does ademption work?
Specific devisee is entitled to a general devise (money) of the net proceeds of the sale
Similarly if T's property was destroyed or condemned and proceeds were paid to guardian/attorney in fact, specific devisee is entitled to a general devise, even if pa
Ademption by Extinction doesn't apply to
general or demonstrative legacies- only specific
what is a general devise
bequest of dollar amount payable out of general assets of the estate without a claim on any particular source of payment.
what is a demonstrative devise
Gift of a general amount that identifies a particular asset as the source of payment.
Note: if there is not suff. cash in the estate or the particular asset is not in the estate at testator's death, other property must be sold to satisfy the bequest.
how does partial ademption work
Conext: T devises a large tract of land, then sells a portion of it. The remaining land passes to the beneficiary
Property that a testator gave inter vivos is treated as a satisfaction, in whole or part, of a devise to that person only if
the testator so intended at the time of making the inter vivos gift.
applies to general legacies
how can the court modify the ademption rule
A ct. may modify the ademption by the applying the identity theory. Ademption is decided solely on the objective test of whether the property is still in the estate at the time of death. The testator's intent and the reasons why the property is not there
what happens if increase to property occurs before Ts death
Income on property goes into the general estate and not to the devisee of the specific gift. Improvements on property go to specific devisee
what happens if increase to property occurs after Ts death
Passes to the specific beneficiary b/c the beneficiary is deemed to own the property from the time of the testator's death
Specific bequest of stock includes___ but does not include___
includes any additional shares produced by stock split
does not include shares produced by stock dividend.
Unless the will specifically directs the payment of the lien, a specific devisee
takes the gift subject to the lien. OH does not follow the exoneration of liens doctrine.
what is abatement
Process of reducing testamentary gifts where the estate is not suff. to pay all claims against the estate and satisfy all bequests and devises
order of abatement ?
Debts, funeral expenses, and administration expenses are paid first (if the will directs these, this controls. if not, paid from residuary).
Property passing by intestacy, residuary estate, general legacies (pro rata), specific gift.
class gift rule of abatement
abate pro rata
When beneficiary loses a devise to a creditor and other beneficiaries ought to share in that debt or pay it before the beneficiary, the paying beneficiary has a statutory right
of contribution from the other beneficiaries.
T cannot disinherit a SS from probate estate unless
waived in a premarital agreement.
SS can elect to take her statutory spousal share in lieu of
taking under decedent's will.
how can a SS take a spousal share
The SS must make the election before probate judge within 5 months from the date of the initial appointment of an administrator or executor.
amount of elective share for SS
1/3 of the estate if: T is survived by 2 or more children
1/2 of estate: if T was survived by one child (or his lineal descendants) or no children
Calculated from the NET ESTATE
Elective share is always
less than what the spouse would receive in intestate succession
Source: elective share is first satisfied by
assets left to spouse under the will (if any); the balance is paid from the other estate assets in accordance with rules of abatement
how can a SS elect to take his share if incapacitated?
the court may make the election on her behalf, but only if necessary to provide adequate support for her during her remaining life expectancy
what if SS dies before election is made?
it may not be made by the executor of SS' estate.
Rationale: purpose of the elective share is to protect SS not to benefit her beneficiaries
elective share does not apply to ___
assets in a revocable trust
mansion house rule of SS
SS may elect to take D's interest in the family residence (the "mansion house") including household goods contained in the house
SS also has the right to live in the mansion house for 1 year free of charge
SS need not occupy the home - may rent it an keep
SS is entitled to support allowance of
of $40,000 (takes precedence over all claims other than funeral and admin. Expenses)
But if D had minor children from another relationship, support allowance is equitably divided between them and the spouse by the probate court
vehicle and boat rule for SS?
Unless specifically devised by will, SS can elect up to two automobiles (aggregate value not exceeding $40,000)
If SS elects two, the value of the less valuable one is charged against the support allowance
SS is entitled to one boat and one outboard motor
SS purchase rights?
SS may buy property from the estate (with a value no greater than 1/3 of the value of the entire estate) that has not be specifically devised by will
dower rule for SS?
Entitles surviving spouse to a life estate in 1/3 of the real property owned by the decedent during marriage.
SS can claim both dower and elective share.
If owner dies still owning real property, SS rights terminate
If owner conveyed property during life
T may disinherit
heirs, but not spouse
Pretermitted Heir statutes are designated to
to protect children and designated heirs from being accidentally omitted and thus disinherited from the will.
rule for pretermitted heir
If after making a will, T has a child/adopts a child/designates an heir AND no provision is made in the will for the child/heir, then child/heir is entitled to a share of T's estate UNLESS it appears from the will that T intended to disinherit the child/h
Pretermitted Heir's share:
Cannot touch property left to T's SS
If anything left, pretermitted heir is entitled to
a share equal to what he would have received if T had died intestate;
T was not survived by a spouse; AND
T's state did not include any include any property left to th
To be enforceable, an agreement to make a will or to include a particular devisee in a will must
in writing and signed by the party making it
The will itself may constitute the writing, if it makes adequate reference to the K
A will is revocable by T even if
if it is executed pursuant to a valid K where T promised not to revoke it
Revocation, if valid however constitutes a breach of K and the A can sue to enforce or for damages
for real property, The will's validity and effect are determined by the law of
the state where the property is located.
for personal property, what law controls?
The law of the testator's domicile at the time of her death controls the validity and effect of the will.
A foreign will may not be contested in OH if it has been
validly executed in accordance with the law of another state or country, relative to property located in OH.
Kto make, not to make, or not to revoke a will is
valid
requirements in OH for contract to make a will or a gift by will
must be in writing and signed by T
remedies for breach of a Kto make, not to make, or not to revoke a will is
Damages, quantum meruit, or equitable relief.
If promise was to devise specific property, the court may impose a constructive trust on the property for the promisee's benefit.
what is a joint will?
A joint will is a single instrument executed by two or more testators and intended to serve as the will of each.
when is a joint will admissible to probate?
when can it be revoked?
It is admissible to probate on the death of each testator.
Revocable at any time during testator's life, even if the wills were executed pursuant to a K not to revoke.
what are reciprocal wills and when can they be revoked?
Separate wills executed by two or more testators that contain substantially similar or reciprocal provisions.
Revocable at any time during testator's life, even if the wills were executed pursuant to a K not to revoke.
when are contracts not to revoke revocable?
Revocable during both parties' lifetimes provided notice is given to the other party.
if contract not to revoke is revoked without notice to and the revoking parties dies in breach, then
there may be no remedy since there has been no damage and the other party is free to revoke.
no remedy for revoking a contract not to revoke unless
first party dies in reliance on and compliance with the contract and;
look out for NOTICE of action taken.
The survivor dies in breach (after having revoked his will) or attempts to dispose of the property covered by the agreement during his lifetime.
In
types of will contests
Defective execution
Revocation
Lack of testamentary capacity
Lack of testamentary intent
Undue influence
Duress
Fraud
Mistake
how can you contest a will in ohio?
In OH, must be filed within 3 months after the cert. of notice of probate of the will is filed.
Only interested parties have standing to contest a will.
All devisees and legatees under the will and all heirs are nec. parties & must
OH cts. enforce no-contest provisions even when
there is PC to contest.
what does a no contest provision do
provides that a beneficiary who contests the will forfeits his interest
beneficiary forfeits his legacy unless he has PC to bring the contest.
how does partial ademption work
Conext: T devises a large tract of land, then sells a portion of it. The remaining land passes to the beneficiary