Reading...
Play button
Play button
Use LEFT and RIGHT arrow keys to navigate between flashcards;
Use UP and DOWN arrow keys to flip the card;
H to show hint;
A reads text to speech;
49 Cards in this Set
- Front
- Back
|
3 ways property passes at death
|
1. by will
2. by state of intestate succession (through probate) i.e. person dies without a valid will 3. by will substitute (non-probate) a. life insurance-proceeds pass to designated beneficiary by k. b. joint tenancy with rights of survivorship c. assets in trust that pass to beneficiaries named in trust instrument. |
|
|
When does property pass by intestate succession?
|
Real and personal property may pass by intestate succession when:
1. the D dies w/o having a will; 2. the D's will is denied probate [due to improper execution or successful will contest]; 3. D's will doesn't dispose of all his property [resulting in partial intestacy] either b/c a residuary gift has failed or b/c thewill contains no residuary clause; or 4. D's will specifies that his property shouls pass according to the laws of intestate succession |
|
|
Who survives in intestate succession?
|
Heirs - persons entitled to inherent from intestate D under the statutes of interstate succession.
Prospective Heirs - persons who would be heirs of a living person if he or she dies intestate. Protective heirs [and beneficiaries - devisees - under the will of a living testator] don't have any property rights in the estate of a living person; rather, they have a mere expectancy, that at CL, could not be released. Surviving Spouse |
|
|
What do you look at first in intestate succession?
|
Look to see if there is a surviving spouse.
|
|
|
Rule for Surviving Spouse
|
If the decedent is survived by a spouse and by descedents, the smt received by the surviving spouse depends on whether
1. the spouse is the parent of any surviving descedents, and 2. the decedent was survived by 1 child or more than 1 child |
|
|
If D is survived by 1 child [or lineal descedants] and s is natural or adoptive parent of child, what does s take?
|
The entire estate
|
|
|
If D is survived by 1 child [or lineal descedants] and s is not the parent, what does s take
|
spouse takes first $20,000 of the intestate estate plus 1/2 of the balance.
|
|
|
If D is survived by more than 1 child or their descedants, and s is the parent, then...
|
spouse takes the entire intestate estate
|
|
|
If D is survived by more than 1 child or their descedants, and s is the parent of 1 but not all children, then...
|
spouse takes $60,000 of the intestate succession plus 1/3 of the balance.
|
|
|
If D is survived by more than 1 child or their descedants, and s is NOT the parent of any children, then...
|
spouse takes first $20,000 of the intestate estate plus 1/3 of the balance.
|
|
|
If D is survived by spouse and no descedants, then...
|
the spouse takes the entire estate
|
|
|
Shares of Descedants
If an intestate D was survived by any descedants, then they... |
will inherit all of the estate if there is no spouse, or if the estate doesn't pass to the surviving spouse
|
|
|
Ohio Rule - Per Capita with Representation
If an intestate D was survived by any descedants, then they will take their shares of the estate per capita w/ representation, i.e.... |
the estate is divided into shares at first generation where there is a survivor. [See Lecture p.4]
|
|
|
Shares of other Family Members
What is the sequence? If D's intestate estate doesn't pass to |
If D's intestate doesn't pass to spouse then passes to Issue; if none, then passes to D's Parents; if none, then passes to D's siblings [or their issue]; if none, then 1/2 passes to D's maternal grandparents and 1/2 to paternal grandparents; if one of the maternal or paternal gp is dead then their 1/2 passes to the surviving gp; if both sides of gp's are dead, then the 1/2 passes to their descendants [e.g.great aunt]; if none, then passes to D's next of kin [not ohio]; if none then passes to stepchildren [or their issue]; if none, then D's estate escheats [goes to the state]
|
|
|
Adopted children rule
|
for intestate succession purposes, a adopted person is treated as a birth child of adopted parents.
Adopted child and descedants can inherit from and through his adopting parents, and adopting parents [and their kin] can inherit from and through the adopted child. |
|
|
Can stepchildren and foster children who have not been adopted enjoy the same rights?
|
NO
E.g. Assume GP, who died intestate, had 1 child C, who predeceasd GP. C had 1 natural child, NC; 1 adopted child, AC; and 1 stepchild Sc. GP's estate would be distributed as 1/2 to NC and 1/2 to AC. |
|
|
Define Posthumous Descedants
|
A child or more remote descedant in gestation at time of D's death inherits as if born during D's lifetime.
|
|
|
Children out of wedlock
|
A non-marital Child always inherits from the mother. The child will inherit from his father only if paternity is established.
Paternity may be established during the fathers lifetime by judicial proceeding or by acknowledgement. Also, if a man was married to the mother and the child is born during the marriage, or w/n 300 days after the termination of the marriage (by death, divorce, annulment, or dissolution), there is a presumption that the man is a child's father. Paternity may also be established after the Father's ddeath, such as by DNA testing |
|
|
Designated heirs
|
A person (designator) may make a written declaration before a probate judge designating another person at an heir. If the designator then dies intestate, the designated inherits from the designator as if he were a child of the designator.
However, although the designated heir may inherit from the designator, he did not inherit through the designator. If DH predeceases the designator, his descendents will not inherit from designator. |
|
|
Is there a distinction between half bloods and whole bloods?
|
No. Ohio has abolished all distinctions between siblings of the half blood and those of the whole blood.
|
|
|
What are the 4 doctrines applicable to both intestate and testate estates?
|
Survivorship
Ohio slayer statute disclaimers lifetime gifts to heir or will devisee |
|
|
Survivorship = simultaneous death
|
Generally, in Ohio, to receive probate property by Will or intestate succession (or to take nonprobate property), a person must survive the decedent by at least 120 hours - five days. If the heir beneficiary survives the decedent but by less than 120 hours, he is treated as having predeceased the decedent. Thus the property will pass as if the owner survived
|
|
|
Ohio slayer statute
|
A slayer may not benefit from a death caused by his intentional and felonious act.
Rather, the property the slayer would have received as a result of the victim's death passes as if the slayer predeceased the victim (if the slayer was a devisee under the victims will, consider application of the anti-lapse statute). |
|
|
Who does the Ohio's slayer statute applied to?
|
The statute applies to one who is convicted of, pleads guilty to, or by reason of insanity is found guilty of, the murder or voluntary manslaughter of the decedent.
Also covered are persons who are indicted for such a crime, but who are found incompetent to stand trial. |
|
|
What if the slayer intentionally and feloniouslly pled guilty to involuntary manslaughter or was not prosecuted at all: May the slayer take the estate?
|
No. When the killing is intentional and felonious, forfeiture can occur under the common law even if the slayer statute is not applicable.
If there is a criminal proceeding, the culpability of the slayer can be established in a civil proceeding. E.g. OJ Simpson. Like Ohio's 120 hrs survivorship statute, the slayer statute applies not just to probate assets, but also to non-probate assets such as joint tenancies and insurance proceeds. |
|
|
Disclaimers
|
A beneficiary or heir may disclaim any interest that otherwise would pass to him from the decedent or the decedent's estate (e.g. a gift by will, intestate share, life insurance, and death benefit proceeds, joint tenancy property), with the consequence that the interest passes as though the disclaiming party predeceased the decedent.
Disclaimers often made for tax reasons. |
|
|
Why Disclaim?
|
To avoid gift taxes, and creditors claims.
Note: though, that in Ohio the disclaimer of an inheritance with the intent to defraud a creditor is a fraudulent conveyance that be set aside by the disclaimant's creditor. |
|
|
How does one disclaim ?
|
For a disclaimer to be effective for tax purposes, it must be made within 9 months of decedents death that (but accept the property and later disclaim it within the nine months period.
The nine-month rule does not apply under ohio law for property law purposes. Note: a guardian for incompetent or minor, and a personal representative for a decedent, may (but only with the probate courts consent) disclaim on behalf of the ward or the decedent. |
|
|
What is Advancement of Intestate Shares?
|
An advancement is a gift made to the heir with the intent that the gift be applied against any share that the heir inherits the interstate donor's estate.
E.g. Parent had 2 children, Pat and Chris. Parent gave Chris blackacre (valued at $40,000). The next yr Parent died intestate with a $160,000 probate estate.; her only heirs were Pat and Chris. How should the estate be distributed? 1st Issue: whether the gift was an advancement. |
|
|
What is the procedure if advancement is found?
Hint: hotchpot |
the amount advanced is added with the net value of the estate for purposes of calculating distinctions; i.e. the amount advanced is brought back into hotchpot. Thus, an heir who has received an advancement has his share of the aggregate estate reduced by the amount of the advancement.
E.g. Chris's gift ($40,000) is added to parent's $160,000 estate for a total of $200,000, before the total is divided into $100,000 shares for each child. Chris is treated as already having received $40,000, with the result that the $160,000 estate is divided $100,000 for Pat and $60,000 for Chris. |
|
|
What if an advancement is greater than the heir's intestate share under hotchpot?
|
The heir is not reasonsible for returning the excess.
|
|
|
What is the ohio rule for advancement?
|
A lifetime gift is not an advancement unless there is a contemporaneous writing of the donor setting forth the intent, or a writing (not necessarily contemporaneous) of the donee acknowledging the gift as part of the donee's inheritance.
Furthermore, an advancement is not binding on a predeceased heir's successors unless the required writting or acknowledgment specifically provides otherwise. E.g. Same facts as problem 1: suppose the writing requirement was met, but Chris predeceases Parent, survived by GC, who survived parent? GC |
|
|
Satisfaction of legacies
Hypo |
T's 2006 will provides: "I give $3000 to each of my children, Ann and Ben. I give the residue of my estate to my spouse, S." In 2007, T makes a gift of $20,000 to Ben. T dies in 2008. What is Ben's share of the estate?
|
|
|
What happens if your client leaves spouse Greenacre that they owned jointly in his will?
|
If a deed provides that property is owned jointy with right of survivorship, it passes to the surviving joint tenant by operation of law and is not included in decedent's estate.
Thus greenacre passes to ss, as surviving owner, outside of testator's will. |
|
|
What to options does a Surviving spouse have if estate is testate? I.e a valid will
|
1. SS can take the gift's T gives her in his will, or
2. SS may take elective statutory share |
|
|
Define Statutory Elective Share
|
. In Ohio, a surviving spouse can elect to take under the will or take an elective share of the decedent’s estate.. In Ohio, a surviving spouse can reject the will and take an elective share of the decedent’s estate.
|
|
|
What does SS get if she files notice of election?
|
Depends on the number of descendant's.
If T is survived by 2 or more children or lineal descendants, ss will take 1/3 of D's net estate. I.e. Mary could take 1/3 of the value of greenacre if deed didn't provide for a right of survivorship; ow she owns it out right, 1/3 of T's personal property, and 1/3 of blackacre |
|
|
What is D's net estate?
|
Net estate includes all property all property D owned at the time of his death minus expenses and money owed to creditors.
|
|
|
Define right of Dower
|
In ohio, a ss is entitled to a life estate in 1/3 of the real property owned by D during marriage. Sale of property to a 3rd-party doesn't extinguish this right unless the spouse consents to the sale.
|
|
|
Can a SS claim both a right of dower and elective share?
|
Yes, but if she does she can't claim anything under the will.
|
|
|
Family Allowance Rule
|
In Ohio, the surviving spouse is entitled to a support allowance of $40,000 as long as Tom had no minor children from another relationship, as an allowance for support of the spouse and children during period D's assets are tied up in probate.
|
|
|
Mansion House Rule
|
A SS is allowed to stay in the family home (the "mansion house") free of charge for one year following D's death.
|
|
|
SS's right to automobiles
|
D's interest in up to 2 cars is passed to SS if
1. the cars aren't transferable to ss due to JOWRS, 2. the cars aren't specifically disposed of by will, and 3. as long as the combined value of the 2 cars doesn't exceed $40,000 |
|
|
Can D's interest in 1 watercraft and 1 outboard motor pass to SS?
|
Yes unless they are specifically disposed of by his will.
|
|
|
Define Pretermitted Heir
|
In ohio, if after executing his will, a testator has a child and the child is not provided for in the will, the child is entitled to get what he would have gotten had the testator die intestate and without spouse, but any gift the spouse received is subtracted from him.
Furthermore, in ohio, if a decednt dies leaving no spouse, the children take per capita with right of representation. Note: a child born after execution of a codicil is not a pretermitted heir |
|
|
Rule for Pretermitted children and designated heirs who are presumed to be dead but turns out to be alive.
|
If pretermitted children and designated heirs are believed to be dead but later prove to be alive are protected under the PRETERMITTED Statute
|
|
|
What if pretermitted or designated heir predeceases T?
|
Then their issue will receive the share their parent would have received if living.
|
|
|
Can property given away before D's death pass through D's estate?
|
GR- no UNLESS, the lifetime gift was intended to be in satisfation of a legacy in testator's existing will.
|
|
|
Define Satisfaction of legacy
|
A testimentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficary made after execution of the will, if the testator intends the transfer to have that effect.
Applies to general legacies - money; not residuary gifts or gifts made prior to execution of the will. |
