Wills Ohio 2007 Essay Advantage

Front 1

What does a surviving spouse get when a person dies intestate and is survived by a spouse and all of the children were children of the surviving spouse

Back 1

The surviving spouse takes all

Front 2

"What does a surviving spouse get when a person dies intestate and is survived by a spouse and at least one, but not all, of several surviving children was the child of the surviving spouse"

Back 2

"The surviving spouse takes the first 60k of the estate, plus one-third of the balance of the estate"

Front 3

What does a surviving spouse get when a person dies intestate and is survived by a spouse and if the surviving spouse had no children with the decendent and the decedent only had one child

Back 3

"The surviving spouse takes the first 20k of the estate, plus one-half of the balance"

Front 4

What does a surviving spouse get when a person dies intestate and is survived by a spouse and if the surviving spouse had no children with the decendent and the decedent only had more than one child

Back 4

"The surviving spouse takes the first 20k of the estate, plus one-third of the balance"

Front 5

When can stepchildren generally inherit

Back 5

"Nothing, unless they can show an agreement between the adoptive parent and the natural parents on which na estoppel argument can be made"

Front 6

When can a child out of wedlock inherit from his birth father

Back 6

"(1) genetic tests indicate paternity with 99% or greater probability; (2) father marries mother; (3) father was married to mother when child was conceived; (4) father attempted to marry mother, but marriage was void; (5) father filed an acknowledgement of paternity with the state"

Front 7

What does filing a designated heir do

Back 7

"A designator may make a written declaration before a probate judge designating another person as an heir. If the designator dies intestate, the designated heir inherits as if he were a child of the designator, but the anti-lapse statute does not apply if the designated heir predeceases the designator."

Front 8

How long must a person survive in ohio in order to take under a will or through intestate succession

Back 8

120 hours (5 days)

Front 9

What is an advancement

Back 9

An advancement is a lifetime gift that is intended to be applied against any share that the recipient will inherit through intestate succession after the donor's death

Front 10

What is required to prove an advancement

Back 10

"(1) When the donor gave the gift, he contemporaneously acknowledged in writing that the gift was an advancement; or (2) The donee acknowledges (at any time) in writing tha the gift was an advancement"

Front 11

What is a satisfaction of legacy

Back 11

"A satisfaction of legacy is a lifetime gift make after a will is executed and with the intent that the gift satisfy the legacy in the will. The presumption is opposite of the presumption concerning advancements, as least when the gift is made to the testator's child. If the gift is similar to that in the will and made to the testator's child, it is presumed to be in satisfaction of the legacy absent evidence that the testator intended otherwise."

Front 12

What are the general requirements for an executed will

Back 12

"(1) must be a writing, signed at the end by the testator or someone whom the testator directed to sign in his presence; (2) attested to and signed by two or more competent witnesses who are at least 10 years old and saw the testator sign or heard him acknowledge his signature; (3) If dispositive provisions follow the signature, the entire will is void"

Front 13

What is the presence requirement for the execution of a will in Ohio

Back 13

"Each witness must sign in the testator's presence, but not necessarily in each other's presence. Most courts find sufficient presence if the testator is aware of where the witnesses were and what they were doing at the signing. A few courts require the witnesses to actually sign within the testator's presence"

Front 14

What is the competency requirement for witnesses regarding maturity

Back 14

They must be mature enough and of sufficient mental capacity to understand and appreciate the nature of the act

Front 15

What is the competency requirement for witnesses regarding interest

Back 15

"An attesting witness who receives a gift under the will is still a competent witness, but will lose the gift unless: (1) there are two other competent witnesses to the will, or (2) the witness would take an intestate share if the will had not been admitted to probate, in which case the witness gets the lesser of the legacy or the intestate share"

Front 16

What does the harmless error statute say

Back 16

A will that is not executed in strict compliance with the execution requirements may still be admitted to probate if there is clear and convincing evidence that: (1) the decedent prepared the will or caused it to be prepared; (2) the decedent signed the will with intent to make it her will; and (3) two or more witnesses saw the decedent sign the will intending to be her will.

Front 17

When will Ohio recognize oral wills

Back 17

Ohio recognizes oral wills to dispose of personal property if: (1) The will was made during the testator's last illness; (2) The words are written down and signed by two disinterested witnesses within 10 days after they are spoken; (3) The witnesses prove that the testator was competent; and (4) The will is offered for probate within six months after the testator's death

Front 18

What effect will an oral will have on a prior written will

Back 18

An oral will revokes a prior written will

Front 19

What is a codicil and how is it executed

Back 19

A codicil is a later testamentary instrument that modifies a previosuly executed will. It must be executed with the same testementary formalities as a will. A will is treated as being republished on the date a codicil to the will is executed.

Front 20

When is something incorporated by reference into a will

Back 20

"A writing in existence at the time the will is executed, referred to in the will, and described sufficiently in the will as to permit its identification will be incorporated into a will if the will manifests such an intent"

Front 21

What effect does divorce have on a will

Back 21

Divorce revokes all gifts to the former spouse by operation of law; the testator need not rewrite his will for the revocation to occur.

Front 22

What effect does divorce have on a life insurance policy

Back 22

Divorce revokes all beneficiary proceeds to the former spouse by operation of law; the policy need not be rewriten

Front 23

How can a will be revoked by written instrument

Back 23

A will can be revoked by a written instrument executed with testementary formalities. The revocation can be express or implied.

Front 24

How can a will be revoked by physical act

Back 24

"A will can be revoked by burning, tearing, or destroying it if the action is accompanied contemporaneously with an intent to revoke."

Front 25

What effect does revoking a codicil have

Back 25

"Revocation of a codicil revokes only the codicil, not the prior will, unless a contrary intention is shown."

Front 26

How can a revoked will be revived

Back 26

"Once a will is revoked, it generally cannot be revived unless it is reexecuted or republished by a codicil."

Front 27

How can a revoked codicil be revived

Back 27

"If a codicil is revoked by physical act, the provisions in the will that were revoked or modified by the codicil are not revived by the revocation of the codicil"

Front 28

When may the court disregard a revocation

Back 28

A court may disregard a revocation if the court determines that the revocation was based on a mistake of law and would not have occurred but for the testator's mistaken belief that another disposition of property was valid. A court will apply this doctrine only if it will result in coming closer to the result intended by the testator

Front 29

How does Ohio treat contracts to make a will

Back 29

A contract to make a will or to make a gift by will is not enforceable unless it is in writing and signed by the testator and two witnesses (same as for a will)

Front 30

What is the effect of a contract to make a will

Back 30

"Contract law generally governs contracts to make, not make, or revoke a will. The contract itself is not a will and cannot be probated. If a will is written in violation of a K, it will still be probated and an action for damages may lie, but the usual remedy is to impose a constructive trust on the beneficiaries of the will."

Front 31

When will a gift lapse

Back 31

"If a person who is given a gift in a will dies before or within 120 hrs after the testator, the gift lapses (fails) unless saved by an anti-lapse statute. "

Front 32

When does Ohio's anti-lapse statute take effect

Back 32

Ohio's anti-lapse statute will save a gift if the beneficiary was a relative of the testator by blood or adoption and left descendants who survived the testator. The descendants take the gift by substitution

Front 33

When is property adeemed

Back 33

If property that is specifically bequeathed in a will is not in the testator's estate at his death the bequest adeems and the beneficiary gets nothing

Front 34

What does ademption apply to

Back 34

"Specific bequests, not demonstrative or general legacys"

Front 35

What happens if there is not enough cash for a general legacy or the item cited in a demonstrative legacy

Back 35

"If there is not enough cash, or no Big Boy stock in the estate at the testator's death, other estate assets will be sold in order to satisfy the gift"

Front 36

"By statute, what assets does ademption not apply to"

Back 36

(1) Casualty insurance proceeds for the loss of specifically devised property if the proceeds are paid after the testator dies; (2) The testator rights under a K for the sale of the specifically devised property if the K is executory at the time of the testator's death; (3) A legacy equal to the value of property sold by a guardian on behalf of an incompetent testator

Hint 36

None

Front 37

What does the slayer statute say

Back 37

"One who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent's estate, which passes as if the killer predeceased the decedent."

Front 38

When does a slayer statute take effect

Back 38

"A final judgment of guilt in a murder or voluntary manslaughter case is conslusive; otherwise, cause is determined by a preponderence of the evidence"

Front 39

What does the elective share statute say

Back 39

A surviving spouse can take the gift left ot him or her by a predeceasing spouse or elect to take a statutory elective share

Front 40

What is the elective share if the decedent has no children or one child (or had one child whose descedents survive)

Back 40

one-half

Front 41

"What is the elective share if the decedent has left more than one child, or descendants from more than one child"

Back 41

one-third

Front 42

When does a notice for an elective share need to be given

Back 42

within five months after the date the administrator or executor is appointed

Front 43

How is the decedent's estate calculated

Back 43

Net-Basis (probate minus expenses and creditors' claims)

Front 44

What is the Ohio dower rule

Back 44

"A surviving spouse is entitled to take a life estate in one-third of the real property owned by the decedent during the marriage. If the decedent dies intestate, the surviving spouse is entitled to an intestate share in lieu of dower."

Front 45

What is the pretermitted children rule

Back 45

"If, after executing his will, a child of the testator is born or the testator adopts a child and no provision has been made for the child in the testator's will, the child is entitled to the share he would have taken had the testator died intestate and without as spouse, but the spouse's gift is deducted from the estate first"

Front 46

What is the mansion house rule

Back 46

"A surviving spouse is entitled to remain in the family residence for one year following the decedent's death unless the house must be sold to pay the decedent's debts. In that case, the surviving spouse is entited to the fair market value of the house for the remainder of the year term"

Front 47

What is support allowance

Back 47

Ohoi provides for a spousal support allowance of up to 40k to pay expenses while the decedent's estate is tied up in probate

Front 48

What will mistakes can be cured

Back 48

"Mistakes leaving out a child whom the testator thought was dead can be cured through the Ohio predermitted child statute, other omissions cannot be cured"

Front 49

When is extrinsic evidence allowed in to cure an ambiguity in a will

Back 49

"Extrinsic evidence is allowed to cure a latent ambiguity (will appears clear on its face, but results in a disdescription when applied to the facts). Some Ohio cases have prohibited extrinsic evidence to correct a patent ambiguity, but others have admitted extrinsic evidence to show the situation of the testator and the circumstances surrounding execution of the will"

Front 50

What is the effect of undue influence and how can it be established

Back 50

Undue influence invalidates a will. The person challenging the will must prove: (1) The testator was susceptible to undue influence; (2) Another's opporunity to exert undue influence; (3) Undue influence was in fact exerted; and (4) A will that was the result of undue influence

Front 51

When will a presumption of undue influence arise

Back 51

When an attorney who drafts a client's will is a beneficiary under the will and is unrelated to the testator