Wills

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Governing Law of Wills

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codified in state statutes - Ohio Revised Code!

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Testate, intestate

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Testate: person who dies leaving a will

Intestate: one who dies without a will dies intestate

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Devise, devisee

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devise: testamentary disposition of real or personal property

devisee: means any person designated in a will to receive a disposition of real or personal property

Traditionally, devise was used only to refer to real property, while bequest and legacy were for personal property - now it's all property received as a testamentary gift!

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Heirs

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those persons, including surviving spouse, who are entitled under statutes of intestate succession to the property of decedent

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Distributee

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any person who has received part of the estate from decedent's personal representative, other than as a creditor or purchaser

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Personal Rep

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includes executor, administrator, successor, personal representative, special administrator, and persons who perform substantially the same function under the law governing their status

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Property

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includes both real and personal property or any interest therein and means anything that may be the subject of ownership

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Escheat

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if there are no takers of intestate estate, property escheats to the state!

proceeds from intestate estate will be used to support schools in the county in which the estate is collected

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Required age to make a will

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18 in Ohio

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Per stirpes distribution

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property divided into as many equal shares as there are surviving children or deceased children with surviving descendants

a deceased individual who left NO surviving descendant is disregarded, and an individual who leaves a surviving ancestor who is a descendant of the designated ancestor is NOT entitled to a share

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Complete intestacy

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if a person dies without a will or if the decedent's will is totally invalid

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Partial intestacy

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intestacy is partial if decedent made a will but not all of the property is disposed of by the will (e.g. no residuary clause)

if residuary legatee disclaims his share, that property will descend or be distributed as if the disclaimant predeceased the decedents. A disclaimer by the residuary legatee may also result in partial intestacy

any part of the estate of a decedent not effectively disposed of by will passes to heirs as prescribed by intestacy laws

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No surviving spouse

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the estate will pass to the children of the intestate or their lineal descendants, per stirpes

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Surviving spouse and more than one child

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if decedent is survived by a spouse and one or more children of the decedent or children's lineal descendants, and the surviving spouse is the NATURAL or ADOPTIVE parent of ALL children, estate passes to surviving spouse

if surviving spouse in natural or adoptive parent of one, but NOT ALL of the children, spouse takes first $60,000 plus 1/3 of the balance of intestate estate . Remainder passes to children equally or to lineal descendants of any deceased child, per stirpes.

If surviving spouse is NOT the natural or adoptive parent of ANY of the children, spouse takes $20,000 plus 1/3 of the balance of the estate - remainder passes to children equally or to lineal descendants of any deceased child, per stirpes

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Surviving Spouse and One child

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if surviving spouse is natural or adoptive parent of the child, estate passes to surviving spouse

if surviving spouse is NOT natural or adoptive parent of child, spouse takes first $20,000 plus 1/2 balance of intestate estate. the rest goes to child or lineal descendants of any deceased child, per stirpes

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Surviving Spouse and No children

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no children or their lineal descendants? whole intestate estate passes to surviving spouse

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No surviving spouse and no children

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Surviving parents or parent of intestate? estate passes to parents equally or the surviving parent

No Parents, but Brothers and Sisters or their descendants? estate passes to brothers and sisters OF WHOLE OR OF HALF BLOOD of intestate, or their lineal descendants, per stirpes

Paternal and Maternal Grandparents left? one half to paternal grandparents of the intestate equally or to the survivor of them, and one half to maternal grandparents equally or to the survivor of them

Lineal descendants of deceased grandparents: if no maternal grandparent OR no paternal grandparent, 1/2 of intestate estate passes to lineal descendants of the deceased grandparent, per stirpes

If there are no such lineal descendants, intestate estate passes to surviving grandparents or their lineal descendants, per stirpes

If there are no surviving grandparents or their lineal descendants, intestate estate passes to next of kin of intestate, provided that there shall be no representation among such next of kin

if no next of kin, estate passes to stepchildren or their lineal descendants, per stirpes

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No surviving intestate takers?

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Escheats to the state!

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Adopted Children

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treated as natural-born child of adoptive parents and NOT of biological parents

if an adopted person dies intestate, his property will be distributed among persons who would have been his kin if he had actually been born to his adoptive parents

adoption of a child by the spouse of a biological parent has no effect on the relationship between the child and either biological parent (can still inherit from natural mother and father, and then also stepfather!)

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Adopted Adults

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adopted person 18 or over at time of adopted, and the adopted person's lineal descendants, are NOT included as recipients for purposes of inheritance UNLESS will expressly includes adopted person by name or expressly states it includes a person who is 18 or older at the time person is adopted

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Stepchildren

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have limited inheritance rights unless they are adopted

adoption process CANNOT be by private contract, and must be statutory in nature

in Ohio, stepchildren may inherit in even that no next of kin survive

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Equitable adoption

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principle that a contract or agreement to adopt a child will be enforced in equity to extent of decreeing that the child be entitled to same rights of inheritance of intestate property which he would have otherwise been entitled had the intended adoption proceedings been legally consummated

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Half Blood

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a collateral of the half blood will inherit the same share as if they were whole blood

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Afterborn Heirs

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posthmous child or descendant who was born after decedent's death receives same share as if child or descendant had been born in the decedent's lifetime

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Assisted conception

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child born as a result of embryo donation is regarded as natural child of the birth mother

if the birth mother's hsband consented to the embryo donation, that is the natural father of the child, and the child is regarded as natural child of husband (consent is presumed unless the contrary is shown by clear and convincing evidence)

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Nonmarital children

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child born out of wedlock is legit child of the mother and her kin for purposes of intestate inheritance

man is presumed to be natural father of a child under any of these circumstances: man and child's mother are or have been married to each other, and child is born during their marriage or is born within 300 days after the marriage is terminated by death, annulment, divorce, or dissolution or after the man and the child's mother separate pursuant to a separation agreement

man and mother attempted, before child's birth, to marry each other by a marriage that was solemnized in apparent compliance with the law of the state in which marriage took place AND attempted marriage voidable and child born during marriage or within 300 days after termination of the marriage by death, annulment, divorce, or dissolution OR attempted marriage is void, and child is born during the marriage and within 300 days after the termination of the marriage by death, annulment, divorce, or dissolution

an acknowledgment of paternity has been filed but not yet become final

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Designated Heirs

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a person of sound mind may file with the probate court of his county a written designation of any other person as his heir at law

he st appear before probate judge with two disinterested acquaintances as witnesses, who must attest to the declaration

if judge is satisfied that declarant is of sound mind and free from restraint, judge will enter designation on the record, and the rules of inheritance will thereafter apply to the designee as if he were his natural heir

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Aliens

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Alienage of ancestor is NOT a bar - an individual is not disqualified to take as an heir because individual or an individual through whom he claims is or has been an alien

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Abandonment of Child

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abandoned = parent of a minor failed without justifiable cause to communicate with the minor, care for him, and provide for his maintenance or support as required by law or judicial decree for a period of at least one year immediately prior to date of death of the minor

a parent who has abandoned his minor child who subsequently dies intestate as a minor shall not inherit the real or personal property of the deceased child - it shall be distributed as if the parent had predeceased the deceased child

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Advancements

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a lifetime gift from a person to an heir with the intention that the gift represent all or part of the share to which the donee would be entitled if donor died intestate

technically limited to intestate gifts; the analogous doctrine for testate gifts is ademption by satisfaction

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Proof of Advancement must be in writing unless acknowledged

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property given by decedent during decedent's lifetime to an individual who is an heir is treated as an advancement against heir's intestate share only if decedent so declared in a contemporaneous writing OR heir acknowledged in writing that the gift was an advancement

property advanced is valued as of the time the heir came into possession or enjoyment of the property OR as of the time of decedent's death WHICHEVER first occurs

if recipient of property advance fails to survive decedent, property is not taken into account in computing the division and distribution of decedent's intestate estate, unless decedent's contemporaneous writing or recipient's acknowledgement provides otherwise

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Doctrine of Hotchpot

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Ohio applies doctrine of hotchpot to equalize, as nearly as possible, the division of decedent's estate among his children or other descendants

to accomplish this, a descendant who has received an advancement must figuratively return it to the estate (by having its value taken into account) in order to receive a distributive share of the estate

he may, however, elect not to do so, BUT this bars him from participating in distribution of estate

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Simultaneous Death

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decedent and an heir of that decedent may die either together, or in sch circumstances that make it impossible to determine who died first

in Ohio, a person must survive the decedent by 120 hours (5 days) in order to take as an intestate heir, trust, or will beneficiary or by right of survivorship.

this rule applies to distributions of property by ANY means, including intestate, will, joint tenancy, and life insurance

however, this rule is superseded by any contrary provision made in decedent's will or other instrument governing nonprobate property

this requirement does NOT apply if its application would result in a taking of an intestate estate by the state

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Joint Tenants

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where there is no sufficient evidence that two joint tenants or tenants by the entirety have died other than simultaneously, the property will be distributed as follows: one-half as if one had survived and one-half as if the other had survived

if there are more than two joint tenants and all of them have died in circumstances that make it impossible to determine order of death, property will be distributed in as many equal shares as there were tenants

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Capacity to make a will - legal capacity

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must be 18!

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Testamentary capacity

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testator must be of sound mind and memory and not under restraint in order to execute a valid will

to be of sound mind to make a will, testator must be capable of understanding: doc to be signed is a will; he or she is providing for the disposition of his or her property after death; the nature and extent of his property; the natural objects of his bounty; and the general nature and effect of his or her act in signing the will

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Burden of proving sound mind

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on the contestant of the will who must establish LACK of capacity by a PREPONDERANCE of evidence

once due execution of the will is proved, presumption arises that testator was of sound mind (this only has effect until evidence of want of capacity appears)

proponent need only show that testator possessed testamentary capacity at the time of the execution of the will

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Testamentary intent

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testator must INTEND the document to act as a will, and this testamentary intent must appear from the face of the writing itself!

testamentary intent is lacking if the testator intended the writing to be only a joke, or to accomplish another purpose (letter to attorney outline provisions of proposed will does NOT operate as a will - just instructions to the attorney)

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Execution Requirements

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to be valid, a will must: be in writing, be signed by testator, or by some other person in hi presence and by his direction; and be signed by at least 2 individuals, each of whom signed within a reasonable time after he witnessed either the signing of the will or the testator's acknowledgement of that signature

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Writing

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the ENTIRE will must be in writing

will can incorporate by reference papers not present at the execution of the will, if the papers are then in existence and are sufficiently identified

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signature of testator

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Ohio specifically requires that the testator sign the will at the END

where the will consists of several sheets of paper, it is not necessary that the testator sign on all the sheets, provided that the sheets comprise one instrument connected in its composition; the signature must appear on the LAST PAGE of the will

a person may sign with a mark, provided that the testator intends it as the testator's signature

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Signature or Acknowledgement in Two Witnesses' Presence

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the testator must either sign the will or acknowledge his signature on the will in the presence of two competent witnesses that are at least 18

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Subscription and Attestation by Witnesses

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Subscription: act of signing the witness's name on the will

Attestation: the act by which subscribing witness either sees the testator sign the will or hears his acknowledgment of his signature previously placed on the will

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Interested Witness

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An interested witness is a witness to a will who receives a beneficial disposition under the will

under Ohio law, a beneficial devise or legacy to an attesting witness or to his or her spouse is void as to that witness and persons claiming under the witness, unless the will is otherwise duly attested by a sufficient number of witnesses excluding that witness

this statute saves the will by voiding the gift to any essential witness

an interested witness who would be entitled to a share of the estate under the intestacy laws will be permitted to take that share of the estate under the will that does not exceed the bequest or devise made to him in the will (that is, the witness will get the less of the bequest or the intestate share - the rationale is that it is not wise to have proof of proper execution depend upon testimony of an interested witness)

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Holographic Wills

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a will wholly in the handwriting of the testator, dated and signed by testator, without attesting witnesses

NOT valid in Ohio

as a result, any handwritten will is only valid in Ohio if executed and attested by two competent witnesses

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Oral or Nuncupative Wills

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Typically, a valid written will cannot be revoked by a subsequent ORAL will

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Oral disposition during last illness

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Ohio recognizes an oral disposition of personal property made during a last illness, if reduced to writing and subscribed by two competent, disinterested witnesses with 10 days after the testamentary words were spoken

oral will MUST be offered for probate within 6 months after the death of the testator

witnesses must prove that the testator was of sound mind and memory, not under restraint, and that he called upon some person present to bear testimony to the disposition as his will

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Conditional Wills

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under concept of a conditional will or gift, testator may choose to make a particular gift, or a whole will, conditional on the occurrence of a specific event

condition must be clear on the face of the will, and must comply with the formal requirements for a will

extrinsic evidence will not be allowed to make a facially valid will conditional

the condition must be an event independent from the making of the will

because of the effect of determining a will or gift to be invalid is that the property will pass in whole or in part by intestacy, and because courts prefer that property pass by will, courts will review a provision to determine if it truly is a condition

most courts when faced with a questionable provision will hold that it is not a condition, but rather a statement of the testator's motive for making a will

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Codicils

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generally, a codicil is an addition to, or an alteration of, a will

must be executed with same formalities as a will

a will or codicil that has been revoked in any manner may be revived by re-execution or by properly executed codicil

a codicil MODIFIES, rather than replaces, a will's provisions unless tehre is express language of revocation or inconsistency between the codicil and the will

where the codicil is inconsistent with the will, such inconsistency will be reconciled as much as possible in order to avoid, or at least limit, an implied revocation of the will's provisions

a codicil may serve another important function. a properly executed codicil can validate a prior invalid will through incorporation by reference

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Conflict of Laws

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if the will disposes of real property, laws of the sate in which the decedent's real property is located will control the distribution of his real property

if the will disposes of his personal property, law of the state in which the decedent was DOMICILED at his death will control distribution of personal property

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Foreign Wills

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a foreign will may not be contested if it has been validly executed and proved under the laws of another state or a foreign country, relative to property in Ohio

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Dispositions by other writings: Incorporation by Reference

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a writing in existence when a will is exeucted may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit it identification

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Pour-Over into an established trust: Testator's inter vivos trust

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a will may pour over into an amendable inter vivos trust

the will must identify the trust, and the terms of the trust must be set forth in a written instrument executed either before or concurrently with the will

the trust may be amended subsequently, and the will pours over in accord with the amended terms, and with no need to amend the will

the termination of the trust, or its entire revocation prior to the testator's death, shall invalidate the devise, bequest, or appointment to the trustee

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Acts of Independent Significance

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a will may dispose of property by reference to acts and events that have significance apart from their effect upon the disposition made by the will, whether they occur before or after execution of the will or before or after the testator's death

these acts and events may include the executuion or revocation of another individual's will and the safekeeping of items in a secured depository

however, the independent even does NOT have to comply with the formal requirements of a will

can't say you bequeath something "to the person I identify in a letter addressed to my attorney" - testator's letter to attorney has no independent verification beyond affecting the testator's testamentary deposition

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Revocation

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a will may be freely revoked until the death of the testator in the absence of a contract not to revoke

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Capacity

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a person with testamentary capacity may revoke his will at any time prior to death

revocation is valid only if the testator's capacity, at the time of revocation, is the same as teh capacity to make a will

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Methods of revocation

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once validly executed a will may be revoked:

by operation of law, by written instrument, or by a physical act

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Revocation by operation of law

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in many states if, after making a will, the testator's family situation changes by subsequent marriage, divorce, birth, or adoption, a will may be partially or totally revoked by operation of law

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Subsequent Marriage - No effect on will!

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in Ohio, marriage following the execution of a will has no effect on an existing will

the new spouse is provided for under the spousal elective share

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Subsequent Divorce

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Revokes provisions in favor of former spouse

divorce, annulment, dissolution of marriage, or final separation after execution of a will does not revoke the will, but revokes all provisions or appointment of property made by the will to the former spouse

any provision in the will conferring a general or special power of appointment to the former spouse, and any nomination in this will of that former spouse as executor, trustee, or guardian shall be revoked nless the will expressly provides otherwise

any revoked provisions are revived by the divorced individuals remarriage to the form spouse OR by nullification of the divorce or annulment

the statute also applies to life insurance policies

any property held in joint tenancy converts into a tenancy in common

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Pretermitted heirs

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if a testator fails to provide for a child born or adopted after the execution of a will, heirs designated after the will is executed, or living children or designated heirs that the testator believed to be dead, the child or designated heir is entitled to a share equal to that which such person would have been entitled to receive if the testator had died intestate with no surviving spouse, owning only that portion of the testator's estate not devised to his surviving spouse
this provision is in place so that a surviving spouse's bequest is not abated by the pretermitted child or heir's share

if the child or heir dies prior to the death of the testator, the issue of such deceased child or heir shall receive the share the parent would have received if living

children or heirs that the testator presumed dead but are alive are protected under this statute

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Exception to Pretermitted Heirs

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if the testator intentionally disinherited the child or designated heir in the will, then the child or heir will NOT be entitled to a share

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Revocation by Written Instrument

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will may be revoked in whole or in part by a subsequently executed will, codicil, or other writing that is executed with the same formalities as are required for the execution of a will

if a subsequent will does not expressly revoke a previous will, the execution of the subsequent will revokes the former will by inconsistency if the testator intended the subsequent will to replace rather than supplement the previous will

however, the sbsequent will supplements rather than replaces a previous will if the subsequent will does not make a complete disposition of the testator's estate - it is treated as a codicil! the subsequent will revokes the previous will only to the extent that the subsequent will is inconsistent with the previous will, and each will is fully operative on the testator's death to the extent that they are not inconsistent

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Revocation by Physical Act

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Concurrence of the Elements: when a will is revoked by physical act, the testator mst have the required intent and capacity AT THE TIME that the document is acted on

a will, codicil, or provision may be revoked if the testator with an intent to revoke, or some person at his direction and in his presence tears, cancels, obliterates, or destroys the will

Tearing includes cutting

to revoke a will by cancelling, there must be some defacement of the words or signature of the will, coupled with an intent to revoke (notation in the margin "voided by later will" is ineffective as cancellation; cancellation may be accomplished by drawing lines through the will or signature, or by scratching out or tearing off the signature)

to revoke a will by obliteration, there must be damage to a material portion of the will (the testator's erasing or crossing out of his signature may be sufficient to revoke the will!)

the intent to revoke MUST be present at the time the physical act occurs in order for revocation to be effective (can't be super drunk)

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Revocation by physical act of person other than testator

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okay if:

it's by request of testator AND in his presence OR

not in the presence of the testator but at the express written direction of the testator

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No Partial physical act revocation permitted

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in Ohio, a will cannot be partially revoked by physical act. Any attempted partial physical act revocation is disregarded!

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Lost, destroyed, or spoliated wills

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in many states, if a will that was in the testator's possession is not found after a proper search at the time of the testator's death, a presumption arises that the will was revoked!

In Ohio, the REVERSE is true - the lost or destroyed will is admitted to probate if the proponent of the will establishes by clear and convincing evidence the following:

the will was executed and the formalities required; AND the contents of the will

an opponent of the will can oppose this presumption by establishing by a preponderance of evidence that the testator revoked the will

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Revocation and effect on other instruments

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Revocation of Codicil: a revocation of a codicil does not revoke the earlier will, nor does it revive any provisions in the earlier will that were revoked by the codicil

Revocation of Will - a revocation of a will revokes any codicils to that will

Revocation of a will executed in duplicate: if the testator revokes a will that is executed in duplicate, the destruction by the testator oeither copy fo the will revokes the will (destruction of an unexecuted copy of the will with an intent to revoke it does not revoke the will

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Doctrine of Dependent Relative Revocation

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Frequently, a testator revokes an old will with the intention that a newly executed will will replace it. If the new will is not made or is invalid, some jurisdictions

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Doctrine of Dependent Relative Revocation

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Frequently, a testator revokes an old will with the intention that a newly executed will wil replace it. If the new will is NOT made or is invalid, some jurisdictions will admit the revoked will to probate on the theory that the testator did not intend the revocation to occur unless the new will's provisions would take effect; that is, that the revocation occurred through a mistake of law or fact by the testator

Dependent relative revocation differs from revival (a question of revival arises when a second or subsequent will is revoked - in contrast, doctrein of dependent relative revocation applies when the second or subsequent will is NEVER made or FAILS for some reason)

the doctrein of depednent relative revocation cannot be invoked in every case in whcih a subsequent will revokes a prior will, bt the subsequent will is invalid - doctrine applies ONLY where two wills have similar provisions

a failure of the subsequent will does not revive the will that it revokes, unless there is an adequate showing that the testator intended to revoke the first will ONLY if the second will was valid

the doctrine does not apply where it appears that the intention of the testator was to revoke the first will totally and absolutely, or where the testator at the time of destruction of the will merely intended at some indefinite future time to make a new will

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Revival of Revoked will

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a will that has been revoked cannot be revived unless it is evidenct fromthe circmstances of the revocation of the subsequent will or from the testator's contemporary or subsequent declarations that the testator intended the previous will to take effect as executed

testator may also republish his first will

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Contractual Wills - Agreement to make a will or die intestate

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a contractual will is one executed pursuant to a separate contract to make a gift or not to revoke a will

the contract must state clearly the requirements of the will

the contract takes effect in the same manner as any other contract (meeting of the minds, consideration, etc.) (in Ohio, an agreement to make a will MUST be in writing)

the contract to make a will MUST be supported by consideration (frequently consideration is the form of services. Similarly, an agreement by one person not to contest another's will may be sufficient consideration for the second person's promise to devise property)

if the contract is proven and the testator breached it, an action will lie for specific performance or damages

if contract cannot be proven, P may bring an action for the return of the consideration; or if the consideration consisted of rending services, the P may brin gan action for the value of the services in quantum meruit

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Contract to make a will must be in writing!

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In Ohio, a contract to make a will or devise or bequest by will mst be in writing and be signed by the testator or by another pesron at the testator's express direcction

if signed by a person other than testator, instrment must be subscribed by two or more competent witnesses who hear the testator acknowledge that the instrument was signed at his direction

NO writing is required for an agreement NOT to make a will

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Breach of Contract

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if testator fails to make the promised tesamentary gift, the promisee can seek damages in the amount equaling the value of the property promised

if the gift was the devise of specific property, the court may impose a constructive trust on the property to benefit the promisee

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Joint and Mutual (Reciprocal) Wills

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a joint will is a document executed by two or more testators that is entended to serve as the will of each and every person who signed it

it is as if each of them had simultaneously executed separate, identical wills

joint wills may be admitted to probate successively upon the death of each testator as his separate will

Mutual (reciprocal) wills are separate wills executed by 2 or more persons, with reciprocal provisions for the distribution of assets

the existence of a joint or mutual will does NOT create a presumption of a contract not to revoke a will - thus, such a will can be freely revoked, and its provisions would not be strictly enforceable. However, if there is a contract to make a joint will or mutual will, the will is irrevocable at the time of death of one of the parties to it

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Construction of Wills - Rules of Construction

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Testator's intention governs!

the intention expressed by testator within the will controls the legal effect of its provisions

although the language of teh will is construed in light of the circumstances as they existed at execution, the will is considered to speak, or take effect, upon the death of the testator

in determining the property to be distributed, the will is construed as if it were executed immediately before the testator's death, unless a contrary intention appears in the will

Testacy Presumed

in interpreting a will, a court will presume that the testator intended to dispose of the entire estate by will and did not intend to die intestate regarding any portion of the estate

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Ambiguities in a Will (generally)

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the cardinal rule of construction is that effect must be given to the intent of the testator

if a will is clear in its terms, and not ambiguous, extrinsic evidence to explain or contradict its terms is INADMISSIBLE, even if the will contains legal language that was not likely to have been understood by the testator or that was contrary to the testator's intent expressed orally

in the interpretation of a will, the testator's oral statement of intention is inadmissible to prove testator's intentions

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Patent Ambiguity

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patent ambiguities appear on the FACE of the will, and courts should first look within the four corners of the instruments

if the testator's intent is still unclear, the court can admit extrinsic evidence that is probative on the issue of intent at the time of EXECUTION of the will only. If the extrinsic evidence does not resolve the ambiguity, the gift FAILS

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Latent Ambiguity

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Latent ambiguities arise when language of the will, otherwise clear, is applied to the thing given or the person benefited under the will, and some extrinsic fact necessitates interpretation or choice among two or more possible meanings

where the ambiguity is latent, extrinsic evidence is admissible ONLY to resolve the ambiguity. However, if the extrinsic evidence does not resolve the ambiguity, the gift fails

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Integration

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Problems of integration arise where there is uncertainty as to precisely what papers and terms were intended to be part of the will at the time of its execution

generally, this is not a problem, because the pages of a will are ordinarily stapled together, or the writing of the will shows an internal coherence that carries from page to page

if a question of integration does arise, the proponent of the will must show that the will offerred for probate is actually the will that the testator intended to make and that no insertions or removals of pages from the will have occurred

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Classification of Legacies and Devises - Specific Bequests and Devises

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a specific devise or bequest disposes of an identified item of property owned by the testator

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Demonstrative Bequests

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a gift (usually an amount of money), payable primarily from a specified source and, if that is inadequate, than from the general assets of the estate

any funds that are left over after the bequest is paid become part of the general assets of teh estate

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General Bequests

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a general bequest is one payable out of the general assets of the estate, rather than one requiring distribution of or payment from particular assets

note that this differs from a specific bequest in that the specific disposition refers to a particular 100 shares of ABC stock that are identified by the word "my" as a part of the property of the testator's estate

the general bequest does NOT identify the stock as property of the estate; the executor could buy any 100 shares of ABC stock (assuming that such stock is publicly traded) and so satisfy the bequest

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Residuary dispositions

Back 84

a gift of whatever is left over in the estate after all claims agains the estate and all specific, demonstrative, and general dispositions have been satisfied

Front 85

Ademption by Extinction

Back 85

a testamentary gift is adeemed by extinction (it FAILS) when property specifically bequeathed or devised is not a testator's estate at the time of the testator's death - the property may have bee sold, destroyed, given away, or lost

the doctrine of ademption by extinction applies only to proeprty specifically described in the will and NOT to general or demonstrative dispositions

the ademption may occur by an intentional act on the part of the testator (like a sale or gift), or by an involuntary circumstance (fire or theft)

in order to avoid ademption, courts generally presume that the testator intended to create a general legacy when he fails to make a specific intention clear

ademption occurs even if a the property has been exchanged for other property

Front 86

Ohio Exceptions to Doctrine of Ademption

Back 86

specific devisee has the right to:

all of the testator's rights under the contract, including any balance of purchase price and security interest retained by the testator, if specifically bequeathed property is subject to a sale contract at the testator's death

any condemnation award unpaid at death for taking of the property (eminent domain)

any fire or casualty insurance for loss of specifically bequeathed property that is paid after death of the testator

and property owned by testator at death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically bequeathed obligation

if the specifically devised property is sold by a guardian or agent of the testator, due to the testator's incompetence or grant of power of attorney, or a condemnation award or insurance proceeds are paid to the guardian or agent, the specific devisee has the right to a general pecuniary devise or bequest equal to the net proceeds of the sale, the condemnation award, or the insurance proceeds

Front 87

Partial ademption

Back 87

if the testator transferred only a portion of the property devised, the beneficiary would be entitled to the remaining portion (pro tanto ademption)

Front 88

No ademption if ownership form changes

Back 88

the gift is not adeemed if only the form of the testator's ownership changed

Front 89

Stock Splits

Back 89

if, after testator executes his will but before he dies, his stock splits, the additional shares he acquires will pass proportionately under a specific bequest of the original shares

Front 90

Accretions

Back 90

beneficiary not entitled to any income from the securities that accrued before the death of the testator, but is entitled to any income that accrues between the death of the testator and the distribution of the property

similarly, if the beneficiary suffers any loss in value, he is not entitled to look to the estate to mae up the difference between the vale of the security at the time of execution and the value at the time of distribution

Front 91

Ademption by Satisfaction

Back 91

the doctrine of ademption by satisfaction is analogous to the doctrine of advancement in intestate estates

ademption by satisfaction only applies to general legacies

an inter vivos gift to a person is considered a satisfaction of a devise to that person only if the testator so intended at thte time of the inter vivos gift was made

if the testator decides AFTER making the inter vivos gift that the gift should result in a decrease in the devise to that person, that intent will not be honored

Front 92

Exoneration

Back 92

the subject of a specific devise may also be subject of liens, including tax liens and mortgages

unless the will otherwise provides, a devisee or his heir takes real estate under a devise in a will subject to all taxes, penalties, interest, and assessments that are a lien against that real estate

the specific devise passes subject to any mortgage or other security interest existing on the date of death, regardless of a general direction in the will to pay the testator's debts, unless the will specifically provides a right of exoneration that extends to that lien

Front 93

Common Law Lapse

Back 93

under the common law, a legacy or devise to a person who predeceased the testator lapses or fails

many states have statutes that allow the gift, in certain circumstances, to pass to the issue of the deceased legatee or devisee

Front 94

Ohio Anti-Lapse Statute

Back 94

provides that, unless otherwise provided by the will, if a devisee or legatee who is a relative, an individual who is related to a testator by consanguinity, or a designated heir at law of the testator that dies before the testator, leaving issue who survive the testator by at least 120 hours, the issue taken by the representation as the devisee or legatee would have done if the devisee or legatee had survied the testator

statute applies to gifts of real property AND personal property

Does NOT apply to inter vivos trusts and life insurance beneficiaries - only to gifts made by will

Front 95

Class Gifts

Back 95

the anti-lapse statute applies to class gifts

if a member of the class dies before or after the testator, the members of the class who are living when the legacy is to take effect take the shares that the deceased member would have taken if he were living

if the deceased class member is a relative of the testator, however, living issue of deceaed relative takes his share by representation

otherwise, a lapsed devise or bequest passes under the residuary clause

Front 96

Lapse in residuary

Back 96

if the testator devises his residuary estate to three beneficiaries and one of the beneficiaries predeceases the testator, his share passes to the other residuary beneficiaries in proportion to their residue interest

however, the distribution of the deceased beneficiary's residuary share changes if there is a contrary will provision or application of the anti-lapse statte

the anti lapse statute applies if the predeceasing beneficiary is within the relative scope of the statute and leaves descendants

Front 97

Decedent's killing by beneficiary

Back 97

as a matter of public policy, the common law prohibits individuals from profiting from MURDER!

a beneficiary or heir who kills the decedent is prohibited from inheriting ANY portion of the decedent's testate or intestate estate

all property of decedent is distributed as if the killer predeceased the decedent

the anti-lapse statute is applicable to any interest devised to the killer

the beneficiary of a life insurance policy CANNOT recover the proceeds if he caused the insured's death by his intentional and felonious act

insurance proceeds payable to the killer as beneficiary or assignee of a policy on the life of the victim, or as a survivor of a joint life policy, go to the estate of the decedent, unless there is an alternative beneficiary not claiming through the murderer

Front 98

Joint Ownership (involving a killer)

Back 98

as to property held by the killer and the decedent as tenants by the entirety or any other form of ownership right of survivorship, the resulting death of the decedent caused by killer causes the estate to convert into a tenancy in common! the share of decedent passes as his part of the estate

the killer retains NO right of survivorship

Front 99

Justifiable Killing

Back 99

a justifiable killing in defense of oneself or another will NOT disqualify a beneficiary from recovering benefits resulting from that death

Front 100

Disclaimers (renunciation)

Back 100

the testator cannot force a beneficiary to accept a gift under a will

the beneficiary can disclaim in whole or in part any interest that passes to him by intestate succession, by will, or by exercise of a power of appointment in a testamentary instrument

Disclaimable Interests - gifts by will, an intestate share, life insurance proceeds, and joint tenancy property may be disclaimed at any time before accepting the benefits thereof

the disclaimed interest passes as though the discliamant predeceased transferor

disclaimers are often made for tax reasons

Front 101

Form of disclaimer

Back 101

for disclaimer to take effect in Ohio, disclaimer MST be signed and acknowledged by the disclaimant, AND refer to donative instrument; describe property or part or interest disclaimed, and declare disclaimer and extent thereof

Front 102

Delivery of Disclaimer

Back 102

must be delivered personally or by certified mail to personal rep of decedent's estate

a copy of disclaimer must be filed in probate court where the decedent's estate will be administered. If administration has not started, the disclaimer should be filed in the court where it may be commenced

Front 103

Interest in Real property

Back 103

if an instrument transferring title to real property is disclaimed, a copy of the disclaimer must be recorded in the county recorder's office where the real property is located

Front 104

Timing of Disclaimer

Back 104

There is no tie limit within which disclaimer must be made

the right to disclaim is barred if the beneficiary has accepted any benefits or has assigned or mortgaged the interest

Front 105

Federal Tax implication

Back 105

to be qualified disclaimer for federal tax purposes, the disclaimer must be made within 9 months after decedent's death or 9 months after beneficiary's 21st birthday

Front 106

Disclaimer on Behalf of Infant, incompetent, or decedent

Back 106

disclaimer can be made by guardian of a minor, a conservator of an incompetent person, and a personal rep (executor or administrator) of the decdent

the court having jx of the estate must find that the disclaimer is in the best intersets of those interested in the beneficiary's estate and does not materially affect the beneficiary

Front 107

Disclaimer to Defeat Creditor's Claims

Back 107

disclaimer can be used to defeat a creditor's claim but NOT avoid federal tax liens

disclaimer act as a nonacceptance of disclaimed interest, rather than as a transfer of the disclaimed interest. the disclaimant is treated as never having received the disclaimed interest

if a disclaimer is motivated by an actual intent to DEFRAUD a creditor, it can be set aside by the creditor as a fraudulent conveyance

Front 108

Spendthrift clause does NOT prohibit disclaimer

Back 108

spendthrift provision or similar restriction in the instrument regarding transfer does not limit the right to disclaim

Front 109

Abatement

Back 109

abatement arises where the assets of the testator's estate, after payment of all claims against the estate, are insufficient to pay the bequests or devises made in the will. the beneficiary's shares will abate

Front 110

Order of Abatement if No Order Indicated in Will

Back 110

if will says nothing to the contrary, shares of distributees abate in the following order:

property not disposed of by will; residuary devises; general devises (money); and specific devises

abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received had full distribution of property been made in accordance with terms of will

Front 111

Abatement and Real estate

Back 111

real estate is protected and CANNOT BE USED TO PAY DEBTS until all personal property is exhausted

real property descends immediately to the beneficiary

the executor has no authority to sell real estate unless authorized by will

binding contract of sale, however, converts the realty into personalty

Front 112

Class Gifts

Back 112

class gift exists when a testator makes a gift to a anumber of persons as a group, and the grop may either increase or decrease in nmber. The takers under the class gift are determined either at the time of or after the testator's death.

Traditionally: to be a class, individuals had to be in a natural group with same relationship to testator

Now, a gift to several named individuals, eve of diverse relationships, may constitute a class gift if that's testator's intetn

questions of testamentary intent to be resolved from the whole will, as well as circumstances known to testator at execution

Front 113

Immediate Gift

Back 113

if the gift is an immediate gift (at testator's death), the class closes at the testator's death if ANY members of the class are then in existence

Front 114

Postponed Gift

Back 114

if the gift is postponed, class will remain open unti the time set for distribution

Front 115

Closing of a Class - Maximum Membership

Back 115

if a class gift to a general group, such as children, sisters, etc., is contained in a will, and the will does not specify when the class is to close, the following rules of construction are used to determine when class closes:

rule of convenience - most common - person must be born before period of distribution in order to share in a class gift

if gift is immediate gift, class closes at death of testator

if the gift is postponed, ordinarily there will be no inconvenience involved in allowing class to remain open until time set for distribution - closing will be at distribution date

however, where testator devises property to children of A, each child to receive a share upon attaining age 21, class is closed WHEN THE FIRST CHILD REACHES 21

Where per capita gifts are concerned, even if the gift is postponed, the general view is that the class MUST close at testator's death, whether or not there are members of the class in existence at that time

Front 116

Beneficiary Dead when Will Executed

Back 116

if an individual who is a beneficiary in a will is dead when the will the will is EXECUTED, the gift is void

Front 117

Anti-Lapse Statute Applies to class gifts

Back 117

It does!

Front 118

Will Contests (Caveat)

Back 118

a caveat is a challenge to the validity of a will

in a will contest, a person interested in the disposition of th estate objects to admissio nof will to probate on grounds that will is for some reason invalid - YOU MUST HAVE A FINANCIAL INTEREST

if the contesting party is successful in preventing the will from being admitted and there is no other will in effect, the creator will be treated as intestate

if a valid will that has not been revoked exists, the fact that another or later will was invalid will not prevent earlier valid will from being admitted to probate

Front 119

Grounds for Contest of Properly Executed Will

Back 119

lack of testamentary capacity, undue influence, fraud, and mistake

Front 120

Timing

Back 120

a will contest must be filed within THREE MONTHS after the certificate of notice of probate is filed with the court

Front 121

Only Interested Party to File Will Contest

Back 121

an interested party has an economic itnerest that would be adversely affected by the will's admission to probate

interested parties include decedent's heirs and legatees under a previous will

a creditor of the DECEDENT does not have standing to contest a will

Front 122

Lack of Testamentary Capacity

Back 122

a person 18 years of age or older with sufficient mental capacity may make a will

an individual has sufficient mental capacity to make a will IF:

individual has ability to understand nature of business in which he is engaged

individual has ability to know nature and extent of his property, natural objects of his bounty, and can appreciate his relationship to members of his family

Front 123

Testator's capacity at the time of will's execution

Back 123

mental capacity must exist at the time the will is executed, NOT at testator's death

Front 124

Insane Delusion

Back 124

an adjudication of insanity does not determine testamentary capacity, though it may be regarded as prima facie evidence of incapacity

insane delusions that do not enter into provisions of the will cannot affect its validity; however, if it can be shown that the testator would not have made the questionable disposition "but for" the insane delusion, will can be set aside on the grounds of insane delusion

delusion must be INSANE - concept that has no foundation in reality and is unsupported by evidence

Front 125

Age and Eccentricity

Back 125

a valid will may be executed by one who if very old, of enfeebled mind and debilitated body, whose memory is failing, and whose judgment is vacillating, as long as he is capable of understanding the nature of the transaction he is entering into, and assenting to its provisions

A will can be executed by one who is highly eccentric as long as he meets standard for testatmentary capacity

Front 126

Alcohol and Drugs

Back 126

testator who drinks to excess or is addicted to drugs, and sfferes from the effects of his indulgence, but remains in possession of hi faculties, has testamentary capacity

Front 127

Burden of Proof

Back 127

Ohio courts will presume that testator was of sound mind when making will

the contestant must establish lack of capacity by PREPONDERANCE OF EVIDENCE

if the contestant introduces sufficient evidence to establish lack of capacity, the presumption is no longer valid, and teh propenent of the will must then present proof of capacity

Front 128

Undue Influence

Back 128

testator must understand purpose of will and must know natral objects of his bounty

Undue influence is the term used to describe the actions of another person that impinge on the testator's testamentary capacity. If the will, or any portion of the will, is the result of undue influence, the affected portion or the whole thing is invalid!

any type of coercion, whether mental, physical, or moral, that subverts the sound judgment and genuine desire of individal constitutes undue influence

Must overcome your free will! Flattery or solicitation insufficient!

if person who allegedly exerted undue influence stood in confidential or fiduciary relationship to testator whre the circumstances show the testator was, in fact, dependent on the beneficiary and placed trust and confidence is beneficiary, and received a substantial benefit from the will, a PRESUMPTION of undue influence may be raised

where testator's attorney actively participates in the preparation of the will, is not related by blood or marriage to the testator, and is named a beneficiary in the will, a presumption of undue influence arises

as a general rule, direct evidence of undue influence is rare! the court will therefore look to circumstantial evidence such as relationship between person exerting influence and the testator, the testator's general physical and mental state, and the apparent success of the person exerting the influence; if the will does not comply with the wishes of the source of the undue influence, it is difficult to find that the testator's mental capacity was impaired

Front 129

Fraud (generally)

Back 129

Fraud acts to willfully deceive the testator with respect to the true state of things while allowing the testator to act freely - invalidates a will only if the testator was deceived by, and acted on, misrepresentations

Front 130

Fraud in the Inducement

Back 130

established upon proof that beneficiary knowingly made a false rep to testator to induce testator to draw a will in beneficiary's favor, and that the testator did so as a result of the fraud

Front 131

Fraud in the Execution

Back 131

fraud as to the very nature of the instrument or its contents

Front 132

Remedies for Fraud and Undue Influence

Back 132

an heir who objects to the provisions of a will on the basis of fraud or undu influence should contest the probate of the will

if fraud or undue influence is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate

the legacy that is void due to fraud or undue influence then falls into the reside or, if there is no residuary clause, passes by intestacy

if the entire will is tainted, all the property will pass by intestacy

Front 133

Mistake (as distinguished from fraud)

Back 133

mistake may be distinguished from fraud by the lack of intent to deceive the tesator

mistake may arise froman innocent mirep or from a misunderstanding on the part of the testator

resulting will may be the same as if fraud were invovled

however, resolution in the court will be quite different

Front 134

Mistake in the Execution

Back 134

mistake in the factum relates to a mistake int he will itself (erroneous identification of beneficiary, testator did not know doc was a will)

a will may not be reformed for mistake in the factum if the mistake goes to the IDENTITY of the beneficiary

however, if mistake goes to the testator's testamentary capacity, the will may be held invalid

Front 135

Mistake in the Inducement

Back 135

Mistake in the inducement is a mistake as to facts outside the will that induce the testator to dispose of property in a certain manner

mistakes in the inducement include: mistake as to value of one's property; as to the amount of loans and advancements made to beneficiaries; or mistake as to whether the natural object of one's bounty is living or dead

the provisions of a will are NOT SET ASIDE for mistake in the inducement

Front 136

No-Contest Clauses

Back 136

In many states, a no-contest clause (an in terrorem clause) provides that any beneficiary who contests the will or any of its provisions will forfeit all gifts under the will, unless he had probable cause

in Ohio, courts CAN (NOT MUST) enforce a no-contetst clause even if there is probable cause to contest

Front 137

Standing to Contest

Back 137

an interested person may contest a will (interested person: one who has a pecuniary interest in the matter - must stand to gain financially)

if the will contest would cause property to escheat to the state, the state may contest the will

however, the state may not contest in order to increase the amount of estate tax it would otherwise collect!

person contesting the will mst have more than an expectancy interest

Front 138

Effect of Subsequent Will

Back 138

if a second will gives less than prior will, and prior will is still valid, a devisee under the first will may contest the second will

beneficiaries under the first will, but not a second will, however, CANNOT contest the third will

a trustee may contest a later will under which those who would have been the trusts' beneficiaries under the first will are not included

Front 139

Creditor's Rights

Back 139

creditor of an HEIR who has placed a lien on decedent's property in the expectation that the heir will receive that property, may contest the will if it devises the property away from the debtor

creditor of DECEDENT may NOT contest will because such an action will make no difference. Creditor will be paid regardless of the existence of the will

Front 140

Estoppel

Back 140

any action that is inconsistent with the theory that the will is invalid will prevent the party taking that action from contesting the will

actions that mislead the other parties, such as hiding valid will, will prevent that party from bringing an action

party who has already accepted full benefits under the will may not then be heard to say will is invalid

Front 141

Will Substitutes/Non-Probate Transfers

Back 141

in addition to wills and alws of intestate succession, there are numerous other methods of transferring proeprty at death. These are often known collectively as will substitutes or non-probate transfers

Front 142

Items that do not survive death

Back 142

examples of this type of interest are the right to receive the income from a trust fund for life, a life state in a parcel of land, or an annuity

Front 143

Items that pass outside the probate estate

Back 143

certain types of interests pass to other persons independently of the probate state

property that vests in another at the death of the testator never becoems part of the estate, therefore, cannot be disposed of by will

Front 144

Reeasons a person would want property transferred at death other than by will or intestacy

Back 144

Probating a will and administering a probate estate = costly and time-consuming

heirs may contest the will on any of several grounds

surviving spouse is entitled to a minimum share, and, if devised less, may take an elective (forced) share instead of the devise

creditors of the deceased testator have the right to file claims and to have allowed claims paid before the estate is distributed to devisees

federal and state estate taxes may be levied on property disposed of by the will

some of these problems can be avoided by inter vivos gifts, although in contrast to a testamentary disposition, the person making the gift loses control over the property before death

a trust, either inter vivos or testatmentary, may also be used to transfer property

Front 145

Elements of a Gift

Back 145

a gift is a voluntary transfer of property by one person to another without consideration

absolute title to the property passes on completion of the gift

Front 146

Inter Vivos Gifts

Back 146

to make a valid gift inter vivos, the donor must part with control of the property during the donor's life, with the intent that title pass immediately and irrevocably to the donee

the burden of proving the essential elements of such a gift normally rests upon the party claiming the gift

Bonds, automobiles, bank accounts, and safe deposit boxes often give rise to questions of whether ownership has been transferred and delivery requirement met

Front 147

Bonds

Back 147

ownership of bearer bonds may be transferred by any form of actual or constructive delivery, such as by phone call or note to custodian who is authorized to deliver the bonds to the donee

US savings bond, however, is not effectively transferred until the new owner's name is register

Front 148

Automobiles

Back 148

Delivery of the keys to an automobile is NOT sufficient to effect a gift

donor must assign and eliver the title to the done, and the donee must be registered as the new owner with the state's title registry

Front 149

Bank Accounts

Back 149

donor may effect a gift by opening an account in the name of the done

a gift may also be created by the opening of an account in the names of the donor and donee jointly

in either case, contractual obligation of bank to pay donee satisfies delivery requirement

issue of donative intent in opening of joint account may be a difficult question for trier of fact

presumption may be that transaction was arranged for the convenience of the depositor where only one of the joint tenants furnishes most or all of the deposit money and the depositor is elderly or invalid and cannot easily manage financial matters

circmstances that wo uld also weigh against the finding of a gift include depositor's keeping the bank book, making withdrawals, or paying taxes on the interest

Front 150

Safe Deposit Boxes

Back 150

Control over the contents of a bank safe deposit box cannot be transferred merely by the delivery of the donor's key to the donee

usually it is necessary for the donee to be signed in to the vault area

until the donor arranges for the donee to be admitted by the bank into the vault, the donee does not have dominion over the contents of the safe deposit box

if a safe deposit box is rented jointly, there is no presmumption of a gift to the other joint tenant of any property placed in the box by either party

Front 151

Gifts Causa Mortis

Back 151

A gift causa mortis is a gift of personal property made by donor in anticipation of imminent death from a SPECIFIC cause

may NOT be revoked by donor's will

Revocation is AUTOMATIC if donor does not die (dying from a different but related cause is okay though)

there is no gift causa mortis if the donor is acting under only a general fear of impending death but is in good health at the time (fear of death resulting from operation or misadventure is NOT the same as expecting death is imminent)

Policy of law is against encouragement of gifts causa mortis because they are essentially testamentary yet without the stattory requirements that attend the making of a testamentary gift - therefore, all requisites of a valid inter vivos gift must also be present and shown by clear evidence in order to prevent fraud and perjury

donor must intend the gift to take effect immediately - promise to pass property at death does NOT constitute a gift causa mortis and is subject to statute of wills

present donative intent must be evidenced by delivery, actual or constructive

Front 152

Multiple-Party Accounts

Back 152

include joint accounts, POD account, or trust account

Front 153

Joint Accounts

Back 153

payabe to one or more of two or more parties, whether or not mention is made of any right of survivorship

deposits in a joint account belong, during lifetimes of all parties, to the parties in proportion to the net contributions by each to the sums on deposit

it is important to distinguish a joint account from an account of convenience - account of convenience is one established to allow one party to make payments from account of another merely because it is more convenient to do so

sums rmeaining at the death of one party belong to survivors, unless tehre is a clear and convincing evidence of a different intention when the account is created

if there are two or more survivors, right of survivorship continues between them

Front 154

Payable on Death Account

Back 154

payable to one or more persons during their lifetimes (original payees), and thereafter to designated beneficiaries (POD payees)

POD belongs, during their lifetimes, to original payees in proportion to conributions by each

at death of original payees, account belongs to the POD payees, or the survivor of them, if two or more POD payees survive, the right of survivorship does NOT continue between them, unless the terms of the account or deposit agreement expressly so provide

as with joint accounts, POD account funds do NOT pass through probate

creditors have same rights upon a party's death as they do in a joint account

account is revocable until settlor dies, at which time the balance vests in the beneficiary

Front 155

Trust Account

Back 155

an account in the name of one or more trustees for one or more beneficiaries

belongs to trustee during his lifetime, unless the trust is irrevocable, in which case the account belongs to the beneficiary

if tehre are multiple trustees, the account belongs to the surviving trustee for his lifetime

Front 156

Other Non-Probate Transfers

Back 156

Among other non-probate transfers available are life insurance policies, retirement accounts, inter vivos trusts, and various third-party beneficiary contracts

each distinguished from a will by the fact that it is governed by a contract

there is usually a third party involved with the contract: the bank, the gov't, and the insurance company

with each will substitute, payment is detrmined by terms of contract - K may be regulated by state, but generally may be defined as parties choose

Front 157

Probate proceedings

Back 157

court decides validity of instrument and whether it is deceased's last will

personal representative appointed to administer estate (if named in will = executor - if appointed by court = administrator)

under Ohio ante-mortem probate legislation, will may be probated while testator is still alive - testator must initiate and name devisees as defendants (heirs if intestate) - once a will is validated through this, all other contests barred!

Front 158

Family Protection - Surviving Spouse's Share

Back 158

surviving spouse of decedent who dies testate may elect to abide by the terms of the will, OR take an elective (forced) share

Front 159

Elective Share

Back 159

Depends on how many lineal descendants survive decedent

No children or on child? surviving spouse can take no more than 1/2 net estate

more than one child? SS takes no more than 1/3

Front 160

Notice of Election - Filing requirements

Back 160

Five Month Rule - SS's election to take under will or in entestacy may be made at any time after the death of decedent, but NOT later than 5 months from date of initial appt of an administrator or executor

Extension - this time may be extended if SS files motion for extension for good cause shown during 5 month period, but if spouse takes no action during that period, it is CONCLUSIVELY presumed that the spouse will take under will

Front 161

Failure to make election

Back 161

if SS dies before probate of will or, having survived probate, either fails to make election or dies without having made an election, the SS shall be conclusively presumed to have elected to take under the WILL

Front 162

Incompetent Spouse

Back 162

if SS is legally incapacitated, right of election may be exercised only by order of court, after finding that exercise is necessary to provide adequate support for legally incapacitated person during that persons' life expectancy

Front 163

Dower

Back 163

SS entitled to an estate for life in 1/3 of real property owned by decedent during marriage

if SS takes elective share, SS may also claim dower - but can't claim anything under will

SS's right to dower terminates if the claim is relinquished or the parties are divorced

Front 164

Additional rights of surviving spouse and children - Mansion House

Back 164

if decedent died intestate, SS may elect to receive decedent's entire interest in marital mansion house

SS's interest is valued at appraised value, deducting the decedent's share of any liens on the house as of time of decedent's death

if surviving spouse dies prior to making eleciton, they are conclusively presumed not to have made an election, and no one can make election on behalf of the estate of SS

Mansion House includes decedent's title to parcel of land where house is, and, at option of SS, decedent's title in household goods contained in house and lots or farmland adjacent and used in conjunction with it

SS alternatively may remain in mansion house free of charge for 1 year, except that the proeprty may be sold within that time to pay for decedent's deaths (if that happens, SS is entitled to compensation from estate to extent of fair rental value for rest of the year)

SS doesn't have to live in the house - can rent it and keep profits!

Front 165

Support Allowance

Back 165

has priority over all claims against estate, and is IN ADDITION to any benefit or share passing by will, intestate succession, or by way of elective share

SS or minor children of decedent are entitled to receive in money of property the sum of $40,000 in allowance for support

Payment: 100% to SS if no minor children or if all minor children are children of SS; in equitable shares if decedent left an SS and minor children, not all of whom are SS's, or if decedent left MCs but no SS OR in equitable shares to MC, according to their respective needs, if decedent left minor children but no SS

Front 166

Automobiles

Back 166

SS may select 2 of decedent's automobiles; the support allowance will be reduced by the value of the automobile having the lower value

automobiles of the decedent that were not automatically transferred to SS due to joint ownership with right of survivorship and that were not specifically devised by decedent are subject to selection by surviving spouse

transfer of title passes the interest immediately to SS, and autos are not treated as assets of estate

Front 167

Watercraft

Back 167

if decedent owned watercraft, outboard motors, or both at time of death, decedent's interest in one watercraft, one outboard motor, or one of each that is not otherwise specifically disposed of by testamentary disposition shall pass to SS