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61 Cards in this Set

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When does real and personal property pass by intestate succession?
Real and personal property may pass by intestate succession when:1. Decedent dies w/out having made a will
2. the decedent's will is denied probate
3. The decedent's will does not dispose of all of his property either because a residuary gift has failed or b/c the will contains no residuary clause 4. the decedent's will specifies that his property should pas according to the laws of intestate succession
What is the intestate share of the surviving spouse who is also the parent of one surviving child?
If the decedent is survived by one child or the child's lineal descendants, and the spouse is the natural or adoptive parent of the child, the spouse takes the entire intestate estate.
What is the intestate share of the surviving spouse who is not the parent of the (1) surviving child?
If the decedent is survived by one child or the child's liineal descendants, and the spouse is not the natural or adoptive parent of the child, the spouse takes the first 20,000 of the intestate estate, pluse one-half of the balance.
What is the intestate share of the surviving spouse who is the parent of all (>1) children?
If the decedent is survived by more than one child or the child's lineal descendant's, and the spouse is the natural or adoptive parent of all of the decedent's children who survive or leave descendants who survive, the spouse takes the entire intestate estate.
What is the intestate share of the surviving spouse who is the parent of at least one, buty not all of the children?
If the decedent is survived by more than one child or the children's lineal descendants, and the spouse is the natural or adoptive parent of at least one, but not all, of the children, the spouse takes the first $60,000 of the intestate estate, plus one-third of the balance.
What is the intestate share taken by children?
In ohio, the decdent's descendants take their shares per capita w/ representation. The property is divided into equal shares at the 1st generational level at which there are living takers. Each living person at that level takes a share, and the share of each deceased person at that level passes to his issue by right of representation. If all lineal descendants are of an = degree of consanguinity to the decedent, they take = shares, no matter how remotely related to the decedent they are.
to whom does the intestate estate pass if the decedent is not survived by a spouse or descendants?
If the decedent is not survived by a spouse of descendants, the estate passes to the decendent's parents (one-half to each) or surviving parent (who takes all).
To whom does the intestate estate pass if the decedent is not survived by a spouse, descendents, or parents?
If the decedent is not survived by a spouse, descendents, or parents, the estate passes to the descendants of the decedent's parents (the decedent's brothers and sisters and the issues of the deceased brothers and sisters by representation.
After you reach the decedent's brothers and sisters (and find none surviving) what is the order of intestate succession after that?
1. one half to maternal grandparents, one half to paternal grandparents (or there descendants by representation)
2. Then to the decedent's next of kin
3. Then to stepchildren or their lineal descendants, by representation
4. If the decedent leaves no relatives capable of taking the estate, the estate will escheat to the state.
What inheritance rights do step and foster children have?
Generally, stepchildren and foster children have no inheritance rights. However, under the right facts, as step or foster child may be able to establish equitable adoption, where step parents or foster parents gain custody of a child under an agreement with the birth parents that they will adopt the child.
How are descendents in gestation at the testator's death treated?
A child or more remote descendant in gestation at the decedent's death inherits as if born during the decedent's liftime.
How are children borm out of wedlock treated?
In OHio, children born out of wedlock may inherit from the morther, and may inherit from the father as well, provided that paternity is established.
What is a designated heir?
A person (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 from the designator as if her were a child of the designator. if the designated heir predeceases the designator, he will not inherit from the designator.
WHat is the 120-hour rule?
In ohio, a beneficiary or heir must survive the decedent by at least 120 hours in order to inherit from the decdent. IF the heir or beneficiary does not survive the decedent by 120 hours, they are treated as having pre-deceased the decedent.
What is a disclaimer?
A beneficiary or heir may disclaim any interest that otherwise would pass to him from the decedent's estate, with the consequence that the interest pases as though the disclaiming party predeceased the decedent. For federal tax purposes, a dsclaimer must be 1. In writing 2. irrevocable 3. Filed w/in 9 mos of the decdent's death or the beneficiary's 21st birthday.
What is the Ohio procedure for an effective disclaimer?
1. In Ohio, a disclaimer must be an irrevocable and unqualified refusal to accept an interest in the property. The disclaimer must: 1. describe the interest to be disclaimed 2. disclaim the interest 3. be signed by the disclaimant. An executed copy of the disclaimer must be delivered via certified mail to the personal representative. A copy of the disclaimer must be filed in the probate court where the decedent's estate is being administered, or where it could be commenced. If RP is disclaimed, an executed copy of the disclaimer should be recorded in the county recorder's office where the proeprty is located. If heir/bene. has accepted the property or its benefits, s/he is estopped from disclaiming the interest.
What is the rule for disclaimer and creditors' claims?
In OHio, a disclaimer can be used to defeat creditors' claims. B/c the effect of the disclaimer is that the property passes as the the disclaimant predeceased the decedent, the disclaimant has no interest that can be reached by creditors. However, if the disclaimer is motivated by an actual intent to defraud a creditor, it is a fraudulent conveyance and can be set aside by the creditor.
What is the "slayer's rule?"
In Ohio, one who feloniously and intentionally brings about the death of a decedent forfeits any interest in the decedent's estate. The property passes as though the killer predeceased the victim. Conviction may prove, or the ct may determine by a preponderance of the evidence whether a killing was felonious and intentional, absent a conviction.
What is the rule for parents who abadon their children?
A parent who abadnons his minor child is not entitled to inherit from the child. The administrator of the estate of an abandoned intestate minor must filed a petition for a determination by the ct that the parent abadnoned the child (failed, w/out justifiable cause, to communicate w/ the minor, care for the minor, and provide for the minor's maintenance or support for at least one year prior to the minor's death.)
What is an advancement of an intestate share?
An advancement is a gift made to an heir w/ the intent that the gift be applied against any share that the heir inherits from the intestate donor's estate. In Ohio, a lifetime gift is not considered an advancement unless it is 1. declared as such in a contemporaneous writing by the donor or 2. acknowledged as such in writing by the donee (donee's writing need not be contemporaneous)
What is the procedure if an advancement is found?
If an advancement is found, the amt advanced is aggregated w/ the net value of the estate for purposes of calculating distributions. ie, the amt advanced is brough back into a hotchpot. The heir who has received an advancement has his share of the aggregate estate reduced by the amt of the advancement. An advancement is not binding on a predeceased hier's successors unless the required writing or acknowledgement specifically provides otherwise. Value of advancement is determined as of the time the gift was made.
WHat is the "satisfaction of legacies"?
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary made after the execution of the will, if the testator intends the transfer to have that effect. This doctrine applies to geenral legacies; does not apply to residuary gifts or gifts made prior to execution of the will. If a gift is made to the testator's child subsequent to the will's execution, and the gift is of the same character or for the same purpose as the legacy, it is presumed to be in satisfaction of the legacy absent evidence that the testator intended otherwise. Otherwise, intent must be shown by the will or by extrinsic evidence.

If the testator gives specifically bequeathed property to the beneficiary, there is obth a satisfaction of the legacy and an ademption.
What constitutes a will?
A will s an instrument executed w/ certain formalities that usually directs the diposition of a person's property at death. A will is revocable during the lifetime of the testator and only operative at the testator's death. Thus, an instrument that is operative during the testator's lifetime cannot be a will. A codicial is a supplement to a will that alters, amends, or modifies the will.
What must the testator have to make a valid will?
1.The testator must have present intent that the instrument operate as her will. [Parol evidence is admissible to show that an instrument was not meant to have any effect (sham will).]
2. testamentary capacity (18 and of sound mind)
3. the will must be executed (see other card)
What is the effect of a conditional will?
A conditional will (a will that provides that t is to be operative only if a stated condition is satisfied) may be interpreted by the court to be expressing the motive for making the will, and the court may give the will effect even if the condition does not occur. Parol evidence not admissible to show that a will absolute on its face was intended to be conditional.
What are the requirements for executing a will?
Ohio requires the following formalities:
1. the will must be in writing
2. will must be signed at end by testator 3. will must be attested and subscribed (signed at end) by 2 or more competent witenesses in the presence of the testator
4. The witnesses must have either seen the testator sign or heard her acknowledge her signature.
How can a will incorporate a writing by reference?
A will can incorporate a writing, in existence when the will is executed, if the language of the will 1. manifests this intent 2. refers to the writing as being in existence and 3. describes the writing sufficiently to permit its identification.
How may a 3rd party sign the testator's will?
The testator's signature may be made by another person at the testator's direction and in the testor's presence. This person may also serve as an attesting witness if she signs the will with her own name as well.
What are the 2 tests for the "presence" requirement?
1. Conscious presence test-this test is satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place nearby, w/in the general awareness of the other parties.
2. Minority view-"line of sight" test-parties must be in each other 's line of sight when they sign the will.
What are the requirments for "competent witnesses" to a will?
1. The attesting witnesses to a will must be at least 18.
2. An interest witness's bequest is purged if their signature is needed to have the will be valid. If she would have been an heir w/out a will, she takes the lesser of the legacy or her intestate share.
What is an attestation clause?
An attestation clause recites the elements of due execution and is prima facie evidence of the facts recited therein. Attestation clauses can be useful in the event the witness forgets or misremembers the facts surroundign the execution.
What is a holographic will?
A holographic will is one that is entirely in the testator's handwriting and has not attesting witnesses. Ohio does not recognize holographic wills and codicials executed in Ohio, but does recognize holographic wills/codicils executed in another state.
What is the effect of an oral will?
An oral will (nuncupative) is valid in Ohio to distribute the testator's personal property if 1. it is made in the testator's last illness 2. w/in 10 days after being spoken, the words are reduced to writing and subscribed by 2 competent and disinterested witnesses and 3. the witnesses prove that the testator was of sound mind and memory, was not under restraint, and called upon an individual present to bear witness to the disposition. An oral will must be offered for probate w/in 6 mos of testator's death to be admitted to probate.
What are the contest of law issues, and how are they treated?
1. Real property- to the extent that a will disposes RP,its validity and effect are determined by the law of the state where the property is located.
2. wrt disposition of personal property, the law of the testator's domiciale at the time of her death controls the validity and effect of the will.
3. A foreign will may not be contested in Ohio if it has been validly executed in acordance w/ the law of another state or country, relative to property located in OH.
What is the "harmless error" rule for execution of wills?
A will that is not executed in strict compliance w/ Ohio's will execution statute may nevertheless be admitted to probate if the followign are est. with clear and convincing evidence:1. the decedent perpared or caused to be prepared, the document purporting to be a will 2. the decedent signed the document intending it to constitute her will and 3. 2 or more witnesses saw the decedent sign the document intended to constitute her will.
What is "integration"?
Physical attachment and internal coherence of pages raise a presumption that the pages were present and that the testator intended them to be part of the will when it was executed. These requirments also can be est. by witness/extrinsic evidence.
What is a codicil? How is it executed?
A codicil is a later testamentary instrument that amends, alters, or modifies a previously executed will. It must be executed with the same testamentary formalities as a will. Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last validly executed codicil thereto.
What is "acts of independent significance?"
A will may dispose of property by reference ot acts and events that have significance apart from their effect on the dispositions made by the will.
How may a will be revoked?
1. Operation of law - divorce/annulment/dissolution revokes all gifts and admin. appts in favor of former spouse.
2. By written instrument-executed with the same formalities req. for a will.
3. By physical act-physical act + intent to revoke at time of the physical act revokes the will.
When is a revocation by proxy permitted?
In Ohio, a will may be revoked by physical act by a person not the testator, provided that the revocation is 1. at the testator's direction and in the testator's presence or 2. outside testator's presence with written authority from the testator.
What happens when a will is lost or destoryed?
In Ohio, a lost or destoryed will is admitted to probate if the proponent of the will can est. by clear and convincing evidence 1. that the will was validly executed and 2. the contents of the will. This presumption may be rebutted by evidence establishing by a preponderance of the evidence that the testator had revoked the will.
What is the effect of revocation on other testamentary instruments?
The revocation of a willrevokes all codicils to that will. if a will has been executed in duplicate, an act of revocation performed by the testator on either copy revokes the will. A physical act of revocation performed on a codicil revokes only the codicil.
How may a will that has been revoked be revived?
As a general rule, a will, once revoked, is not revived unless it is reexecuted or republished by codicil, or if the revoking document shows an intent to revive and give effect to a previous will.
What is dependent relative revocation?
DRR is an equity-type doctrine under which a court may disregard a revocation if it determines that the act of revocation was premised on a mistake and would not have occurred but for the testator's mistaken belief.
What are the requirements for a K to make a gift by will?
Assuming the requirements of a valid K are met, a K to make, not to make, or not to revoke a will is valid. Needs consideration, and in Ohio, a K to make a will or a gift by will must be in writing, signed by the testator.
What are the remedies for breach of a K to make a gift by will?
Generally, there is no remedy during the testator's lifetime, bc there is not way of knowing whether the testator will carry out his promise until he dies. If the testator repudiates the K after the promisee subtantially performs, she make seek damages in quantum meruit or equitable relief.
What is a joint will?
A joint will is a single instrument executed by 2 or more testators and intended to serve as the will of each. A joint will is admissible to probate on the death of each testator as if it were separate pieces of paper. If one of the joint testators should revoke his joint will, the document still serves as the will of the others.
See chart on page 16 of conviser
page 16 of conviser
When does a gift lapse?
If a will beneficiary dies during the testator's lifetime or dies w/in 120 hours after the testator, the gift lapses (fails), unless the gift is saved by the anti lapse statute.
What does Ohio's anti-lapse statute do?
Ohio's anti-lapse statute operates to save a gift if the predeceasing beneficiary 1. was a relative by blood or adoption, or a designated heir of the testator and 2. left descendants who survived the testator by at least 120 hours. The beneficiary's descendants take by substitution under the anti-lapse statute. Applies to testamentary gifts only.
What happens when there is a lapse of a residuary gift?
The residuary beneficiaries who survive the testator take the deceased beneficiary's share of the residuary estate, unless the predeceasing residuary beneficiary was a relative of the testator and left descendants, then the anti-lapse statute applies.
What happens when a will makes a gift to a class of persons and a class member dies during the testator's lifetime?
the class members who survive the testator take the gift (absent a contrary will provision or application of the anti-lapse statute.)
What happens if a beneficiary is dead when the will was executed?
If a will makes a gift to a beneficiary who was dead at the time the will was executed, the gift is void. In Ohio, the rules that apply to lapsed gifts also apply to void gifts.
what is ademption by extinction?
Under the doctrine of ademption by extinction, when specifically bequethed property is not in the testator's estate at death, the general rule is that the bequest is adeemed (ie fails). Ademption by extinction applies only to specific devises and bequests. Does not apply to general or demonstrative legacies.
What is ademption by satisfaction?
Porperty that a testator gave inter vivos is treated as a satsifaction, in whole or in part, of a devise to that person only if the testator so intended at the time of making the inter vivos gift. Ademption by satisfaction applies only to general legacies.
What happns to increases to property after execution of a testator's will?
1. Before death, goes to the general estate.
2. occuring after death, goes ot the specific beneficiary, because he owns property at time of testator's death.
What is the "elective share?"
IN Ohio, a surviving spouse can eect to take under the will or take an elective share. If the decedent is survived by one child or is survivedby no children, the surviving spouse takes no more than 1/2 of the net estate. If the decedent is survived by 2 or more children, the surviving spouse takes no more than 1/3 of the net estate (probate estate-creditor's claims). The spouse must must file notice of election w/in 5 mos of the deate of the initial appointment of the adminsitrator of the estate.
What is the pretermitted heir statute?
In OHio, if after executing her will, a testator has a child bornn alive or adopted, or designates an heir, and no provisions have been made in the testator's will for such a child or designated heir, that child or designated heir is entitled to the shares he would ave taken had the testator died intestate w/out a surviving spouse. This provision applies also to children who are alive but presumed dead by the testator, or to the issue of predeceased pretermitted children/ designated heirs (all applies unless it appears from will that testator intended to disinherit).
REmember, an oral (nuncupative) will may not revoke a prior written will, and must be made in the testator's last illness, and is good only to distribute the testator's personal property.
Oral wills
What is required to establish undue influence?
1. susceptible testator
2. another's opportunity to exert undue influence
3. improper influence actually exerted or attempted; and 4. a will that is the result of the undue influence.
What is required to show testamentary capacity?
To have mental capacity to make a will, the testator must have capacity sufficient to 1. understand the nature of her act 2. understand the nature and extent of her property 3. know the persons who are the natural objects of her bounty and 4. appreciate her relationship to the members of her family.