oh.h.blenkhorn.wills s14 blanks 10.09s3.amazonaws.com/mythm-vids-prod/oh.blenkhorn.wills.pdfexam tip...

OHIO WILLS AMY E. BLENKHORN, ESQ.

Exam Tip 1: The Ohio Bar exam tests your knowledge of Ohio law, which is often different from the Uniform Probate Code some of you may have studied. The exam for wills heavily tests the proper execution and revocation of wills, grounds for contesting a will, and intestate succession. Questions often demand you apply the law to determine who gets what share of the decedent's property. We will navigate through all of these topics during the course of this lecture.

INTESTATE SUCCESSION

• Intestacy is the ______________statutory scheme that applies when an individual dies without a will and has _______________property in his or her estate. It sets forth a scheme of distribution.

• Most intestate schemes carry out the probable intent of the ____________ intestate decedent.

A. Vocabulary

• ________________________: The person who dies without a will • ________________________: Law determining which persons inherit when a person dies

without a will • ________________________: The person entitled to property under the intestate statute • ________________________: The type of relationship between individuals related by blood • ________________________: Property titled in the decedent's name

B. Surviving Spouse

• Under Ohio law, the surviving spouse of an intestate will get one of four possible distributions.

1. The surviving spouse gets the intestate's ________________ estate if the decedent dies and is survived by:

o A spouse and no children or lineal descendants o A spouse and 1 child (or child's lineal descendants) and the spouse is the natural or adoptive

parent of the child o A spouse and more than 1 child (or their lineal descendants) and the spouse is the natural or

adoptive parent of all children

Example 1: I dies survived by his spouse, S and his daughter, D from a previous marriage that S has adopted. S takes I's entire estate.

2 | © 2017 Themis Bar Review, LLC | OH Wills

2. The surviving spouse gets the first $20,000 of the estate plus ___________ of the balance of the estate if the decedent dies and is survived by:

o A spouse and 1 child of the decedent (or child's lineal descendants) and the spouse is not the natural or adoptive parent of the child, remainder to the child or the child's lineal descendants per stirpes.

Example 2: I dies survived by his spouse, S and his daughter, D from a previous marriage. S is D's stepmother, but she has never adopted her. S takes $20,000 plus 1/2 of the balance of the estate and D takes the remaining 1/2.

3. The surviving spouse gets the first $20,000 of the estate plus _________of the balance of the estate if the decedent dies and is survived by:

o A spouse and more than 1 child (or their lineal descendants) and the spouse is not the natural or adoptive parent of any of the children, remainder to the children equally, or to the lineal descendants of any deceased child per stirpes.

Example 3: I dies survived by his spouse, S and his children, E and F from a previous marriage. S is E and F's stepmother, but she has never adopted them. S takes $20,000 plus 1/3 of the balance of the estate and E and F share equally in the remaining 2/3.

4. The surviving spouse gets the first $60,000 of the estate plus ________of the balance of the estate if the decedent dies and is survived by:

o A spouse and more than 1 child (or their lineal descendants) and the spouse is the natural or adoptive parent of one but not all of the children, remainder to the children equally, or to the lineal descendants of any deceased child per stirpes.

Example 4: I dies survived by his spouse, S, his daughter, D from a previous marriage, and child G, from the marriage of I and S. S is D's stepmother, but, she has never adopted her, but she is the natural mother of G. S takes $60,000 plus 1/3 the balance of the estate and D and G share equally in the remaining 2/3.

C. Qualifications of a Surviving Spouse

• A surviving spouse must have been legally married to the decedent. Ohio _______________ law marriages after October 10, 1991 are not recognized as legal marriages; Ohio common law marriages __________________to that date, and those common law marriages recognized as valid in ____________________ jurisdictions will be recognized.

• Additionally, Ohio law, no longer considers a person a surviving spouse if, during life, the decedent and spouse entered into a _____________________agreement in which the parties intend to fully and finally settle their prospective property rights in the property of the other.

OH Wills | © 2017 Themis Bar Review, LLC | 3

D. Children and Other Descendants

• Under Ohio law, children and their lineal descendants are the default takers when there is no surviving spouse. Children take equally, with their lineal descendants taking by right of representation. Ohio uses the term ___________________. The division of property always starts at the first generation that has people living who are entitled to the property.

Example 5: I Intestate has died survived by his grandchildren D and E, sons of his deceased daughter A, B, his daughter, and his grandchild F, child of his deceased daughter C. Begin by dividing the estate at the first generation where there are people living who are entitled to the property. Who gets what share?

D___________ E_________ B___________ F______________________

If in Example 5 all of Isaac's children were still living, what shares would each take? ________________________

Note 1: If all living descendants in a direct line of descent are equally distant from the testator (on an equal degree of consanguinity to the intestate) they share equally.

In Example 5 above, if D, E, and F were the only surviving descendants because each of I's children, A, B, and C predeceased him, then the three grandchildren would share equally. This is a per _____________ distribution.

E. Other Categories of Children

• Adopted: An adopted child generally has no rights to intestate succession of the property of his or her ____________________parents.

Example 6: Stranger Adoption: A and B give up child C for adoption. C is adopted by D and E. Adoption makes C strangers to her birth parents A and B and C has no right to an intestate share of A and B's estates.

o If a child is adopted by the spouse of a birth parent, (stepparent), the adoption will not affect the right of the child to inherit from or through that birth parent.

IIntestate

A

D E

B C

F


o Similarly, the adoption of a child by the spouse of a birth parent after the death of that ________________ parent will not affect the child's inheritance rights with regard to the deceased birth parent.

Example 6A: Stepparent adoption after death of birth parent: A, the birth mother of C, marries new husband H. After A dies, H adopts C. C's ability to inherit through A, should A be entitled to a share of her parent's estate, will not be affected.

• Stepchildren: When do stepchildren or their lineal descendants inherit? _____________________________________

• Non-marital: Non-marital children are permitted to inherit from, through their _________________, and from the natural ___________________, provided paternity has been established.

o Under Ohio Law, paternity can be established:

By presumption if the child is born during the marriage of the mother and father or within ________ days after the termination of the marriage by death or other means

The mother and father tried to marry each other before the child was born and either The marriage can be declared invalid by the court and the child is born during the

marriage of the mother and father or within ________days after the termination of the marriage by death or other means

Or the marriage is invalid and the child is born within 300 days after termination of cohabitation

The father has filed an acknowledgment of paternity that is not yet final

o A child or his or her representative can bring an action to establish paternity. Once the child reaches 18, the action must be brought within 5 years, or it is ___________________.

• Embryo Donation: If a married woman gives birth to a child as a result of embryo donation the child will be legally regarded as the natural child of the husband and the husband as the natural father of the child only if the husband __________________________ to the embryo donation.

• Designated Heir: A designated heir may inherit from the designator, but not _____________ the designator.

Example 7: G designates H as his heir. When G dies, H may inherit from G. However, if after G's death, G's parents die intestate, H cannot inherit G's share. In effect, H cannot inherit "through" G.

• Posthumous: Under the common law, which Ohio follows by statute, a child conceived prior to the ______________________ death but born alive afterwards will inherit as if born during the father's life

Example 8: Child C is conceived in June. Father F dies in July and C is born in March. So long as C is born alive, he or she will inherit as if born during F's life.


• Half-bloods: Brothers and sisters whether of the _________________ or __________________ blood share equally. Half bloods have one common ancestor; whole bloods have two.

Example 9: M married N and had a son, O. After N died, M married P and had two daughters, Q and R. If R later dies survived only by her whole sister Q and half brother O, they will take an equal share of her estate.

INTESTATE SUCCESSION (CONT'D)

A. Ancestors and Remote Collaterals

1. Parentelic Distribution

• If a decedent dies without a surviving spouse or children and their lineal descendants, the decedent's property passes to his or her ancestors beginning with those most closely related to him.

o This pattern is based on the legislative determination of what the probable intent of the average intestate is.

• "Look down, look up, look down, look up".

2. Problems

o What happens if only one parent survives? ___________________________________________________________________________


o If no parents survive? ___________________________________________________________________________

o The estate of the decedent is split in half at the _____________________ level with ________ going to the ____________________________ grandparents equally or to the survivor of them and ________ going to the _____________________________ grandparents equally or to the survivor of them.

o Next of kin are those heirs of the decedent who are more remote than ________________ and their descendants. There is no ______________________among next of kin.

Example 10: Next of kin are the individuals listed under the columns labeled great grandparents and great-great grandparents.

o The last step in Ohio's statute of decent and distribution is for the decedent's property to _________________ to the state.

B. Survival Requirements

• Ohio has adopted the _____________________rule. The heir or beneficiary must prove by ________________________________evidence that he survived the decedent by this amount of time in order to take. If a person does not survive by 120 hours, he or she is presumed to have ___________________________the decedent.

Example 11: Decedent died on January 1. He had a wife and a son. The wife suffered a heart attack after learning of decedent's death and died on January 5, four days after decedent. Who will take decedent's estate? _____________________________

• Exceptions

o It does not apply if its application results in the property escheating to the state. o The decedent can override this rule by stating a different rule in his will.

• Determination of death: An individual is dead if he or she has sustained irreversible cessation of circulatory and respiratory functions or irreversible cessation of functions of the ____________________.

Note 2: In the rare event that the order of death cannot be determined, a "simultaneous death" is treated as if neither person survived the other.

Example 12: Husband, H, and wife, W, each with a child from previous marriage, die in a fiery plane crash. Neither has a will. Order of death cannot be determined so their property will pass as if each had predeceased the other. H's property will pass to his child and W's property will pass to her child.

C. Advancements

• In Ohio, property that a person gave during her lifetime to an heir will be treated as an advancement against that heir's share of the estate if:


o The decedent declared it to be an advancement in a ____________________________________________or

o The heir ______________________in writing that the gift was an advancement.

• Valuation: The advancement is valued as of the time the heir ____________________________________________ of the property.

• Hotchpot calculation is the method used to determine what amount the heir should receive from the estate if she has received an advancement. The value of the advancement is _______________ back into the estate and the total estate is then divided by the total number of heirs. Then the advancement is _________________________ from the share of the heir to whom it was given.

Example 13: Decedent D dies leaving no spouse and a net estate worth $100,000. She gave gifts to each of her three children during her life: $10,000 to A to help her buy a house, $10,000 to B accompanied by B's written acknowledgement that the gift was an advancement, and another $10,000 to C accompanied by a contemporaneous writing by D that it was an advancement. . What amount does each child receive on decedent’s death?

A____________ B_____________ C_________ = $100,000

EXECUTION OF WILLS

Exam Tip 2: One of most tested areas on the bar exam, and in Ohio, you have to be very careful about specifically following requisite formalities.

A. Formalities

• A will is a declaration of a testator's intent with respect to the disposition of his property at his death. Most states have a set of formal requirements in the creation and execution of a will. If these requirements are not met, a will is considered _____________________________.

• Ohio's statute of wills requires that except for oral wills, a will shall:

o Be in writing. This includes _________________and typewritten. o Signed at the _______________ (physical end of the document).

Example 14: This has been interpreted to mean the physical end of the document. If Testator (T) signs his name in the margin on each page of the will, but not at the end, the will is considered void.

o By the party making it or by __________________________________in such party's conscious presence and at his express direction.

o Signatures can generally be any mark that is applied to the will with the intent that it serve as a signature.


Example 15: Dying T is weak and near death, but still mentally alert. T wishes to sign her will that has recently been changed to incorporate new gifts. Her right hand, which she uses to sign, is bandaged heavily. T makes an "X" on the will with intent to sign it. Is this going to be a valid signature? Yes, it is.

It would also be valid if some other party signed at T’s direction and in T’s presence.

• The will must also be _________________and ___________________ in the presence of such party by____________ or more witnesses who saw the testator subscribe or heard him ________________________ his signature.

o Attest means to bear witness to and subscribe means to sign below or beneath. o Acknowledge is when a testator indicates to witnesses that his will has been signed.

• NOTE: If a will is executed according to the statute of another state, it will be honored in Ohio if the testator dies in Ohio.

B. Other Considerations

1. Order of Signing

o It is always best to have the testator sign __________________and then the witnesses, but generally if all parties are together as part of a continuous transaction the will is valid.

2. Presence Requirement

o Witnesses do not need to sign in each other's presence.

Example 16: T asks Y to witness her will. T signs the will in Y's presence. Y then signs the will. Later, after Y leaves, T asks Z to witness her will. T shows Z her signature on the will, saying - "This is my will - I signed it earlier today". Z then signs underneath Y's name. The will is valid even though the witnesses were not together because the witness requirements were followed with each witness.

3. Attestation Clause

o Not required, but can be very useful o Attestation clauses recite the performance of the formalities of execution. They set up a

rebuttable presumption that the will was executed as recited in the clause, and are useful if witnesses have died prior to the death of the testator.

4. Age and Competency

o Testator must be 18 years of age. o Witnesses to a will must be 18 years of age and have sufficient mental capacity to be a

competent witness. Competency is determined at the time of __________________.


"Conscious presence" of testator: testator must be aware that act of witnessing is being performed

5. Interest of Witness

o In Ohio, a competent witness not only has mental capacity but also is "disinterested", meaning that they do not take any ___________under the will.

If an interested witness is one of only two witnesses to a will, the gift to such witness is void and the witness will be allowed to take the lesser of:

• The gift • The witness' _______________share, if entitled to one

Example 17: T dies with a will that devises $50,000 to her only child, C. C is T's sole surviving relative. C served as one of two attesting witnesses to T's will. What amount does C take under the Ohio statute if T's net estate is $100,000? C takes _____________ because it is the lesser of her gift and her intestate share, which would be T's entire estate.

o A witness named as an executor or trustee under the will is considered a competent witness and may serve in the capacity named. Likewise, the drafting attorney is a competent witness.

C. Testamentary Intent

• A testator must have proper ___________________________testamentary intent to execute a will.

• Whether a testator possesses testamentary intent is a question of fact; a will can be rendered ineffective if it is not executed with the proper intent.

Example 18: T asked Lawyer L to draft a will leaving everything to his girlfriend. T signed it, and L attested and subscribed the will as a witness. Before L left, T told him this was a ‘fake will’ made for the purpose of inducing his girlfriend to move in with him. After L left, T completed proper execution of the Will before another witness. In this situation, T lacks testamentary intent so the will is invalid.

• A testator has to know the general plan of disposition, but does not need to have read the will or understand all the technical details.

D. Integration

• Integration is usually not an issue because the pages of a will are often stapled, numbered, and found together after death.

• Sometimes, however, a page that was present at the execution may not be stapled to the others.


• Integration states that the will consists of all pages that are _____________________at the time of execution and that are _____________ to form a part of the will.

Example 19: T executed his 6-page will in the lawyer's office. Secretary, a witness to the will, stapled the pages together not realizing that page 3 had fallen to the floor after execution. It was later found on the floor and put it into the file. Since page 3 was present at the time of execution and was intended to form a part of the will, integration dictates that it is included as part of the will.

E. Testamentary Capacity

• Testator must be at least ________years of age and of sound mind at the time the will is executed. We will examine testamentary capacity in more detail when we discuss will contests.

F. Holographic Wills

• Ohio does not recognize holographic wills. These are wills written and signed in the testator's handwriting that do not need to be_________________. However, if a holographic will is validly executed in another state that recognizes this type of will, Ohio will honor it.

Example 20: Michigan T executed the following will while domiciled in Michigan. Michigan recognizes holographic wills if signed and dated. T then moved to Ohio where she died. Ohio will recognize this as a valid will.

I give my entire estate to my loving husband, Joseph.

Signed this 1st day of January, 2000

Elizabeth Smith

G. Nuncupative Wills

• Nuncupative or oral will are allowed in Ohio under very limited circumstances. They must be:

o Made during the testator's _________________________ o Shall be valid in respect to __________________property (not real estate) o Within ______ days of being spoken, two competent _________________witnesses must

reduce it to ___________________and subscribe it. o The witnesses must prove that the testator was of _____________________ and memory,

not under ________________, and that the testator called upon some person at the time the testamentary words were spoken to bear testimony to such disposition as his will.

• Further requirements: It must also be offered to probate within _____________ months of the death of the testator.

• It cannot revoke a prior _________________ will.


RELATED EXECUTION ISSUES AND WILL SUBSTITUTES

A. Harmless Error

• Traditionally, Ohio has demanded that wills be executed in strict compliance with the statue of wills.

• The harmless error statute allows wills that were not executed in accordance with the statutory requirements to be admitted to ______________if the probate court, after a hearing, finds that the proponent of the document has established by ____________________________ evidence that the following three requirements have been met:

1) The decedent prepared the document or caused the document to be prepared.

2) The decedent signed the document and _____________ the document to be his will.

3) The decedent signed the document in the conscious presence of ________ or more_____________.

Exam Tip 3: Section 3 of the Ohio statute, (conscious presence) applies to the estates of decedents who die on or after September 11, 2008.

• In states that have adopted the rule, most cases have excused attestation and signature errors. Writing errors, such as omitted clauses have rarely been excused.

Example 21: Husband H, and wife W, each sign their wills in front of attorney A and paralegal P, witnesses to the wills. A signs W's will as witness and then takes an urgent phone call. P signs both H and W's will as witness. After his call, A, forgets to sign H's will. On H's death, the error is discovered. The probate court will hold that H's will be admitted to probate despite lacking one witnesses' signature. Clear and convincing evidence shows that H caused the document to be prepared, signed the document, intended it to be his will, and that the signing occurred in the conscious presence of two or more witnesses.

• Attorney liability: If the ________________of the document establishes the requirements of the statute, the executor may file an action to recover the court costs and attorney fees from the drafting attorney of the document.

B. Choice of Law

1. Real Property

o The law of the state in which the real property is _________________ governs the disposition of real property devised in a will.

2. Personal Property

o The law of the state in which the testator was _____________ at death governs personal property bequeathed by will.


3. Foreign Wills Admitted

o A will executed in accordance with the laws of a country or state where the testator was domiciled at the time of his _____________________

o A will attested and executed according to the law in force in the jurisdiction where testator was domiciled at the time of its ____________________

o A foreign will cannot be contested in Ohio.

C. Codicils

• A codicil is a supplement to an existing will that _______________, _____________________or _______________ the will.

• It must be executed with the same formalities as a will and usually __________________the will as of the date of the codicil.

Example 22: T executes her will in 1980. When her last child becomes an adult, she executes a codicil to the 1980 will in 2005, dated that same year. The will is republished as of 2005.

• It is possible that a codicil may validate an invalid will if it is clear the codicil incorporates it, or it is written on the same paper as the original will.

Example 23: T improperly executes her will: It is only signed by one witness instead of two. She later properly executes a codicil to the will that clearly identifies it. The properly executed codicil republishes the will, validating it, and both the will and codicil will be effective to pass T's property at death.

D. Will Substitutes

• Transfers __________________ property in accordance with the terms of a contract, trust, or deed to avoid __________________.

1. Revocable Trust

o Trustee holds ___________title and the beneficiary holds _______________ title. The trustee manages the property during the life, and after the death of the grantor.

2. Pour Over Will

o A will that gives the residue to the testator's inter vivos trust to be distributed according to its terms. If it is not in existence at the time of death, the bequest or devise is _________________.

3. Joint Bank Accounts with Rights of Survivorship

o In Ohio, absent fraud, duress, undue influence, or lack of capacity, the opening of a joint and survivorship account is conclusive evidence of decedent's intention to transfer to the surviving party or parties a survivorship interest in the _________________remaining in the account at death. [Ohio does not recognize convenience accounts.]


4. POD/TOD

o POD accounts are contracts with a bank or other financial institution in which one person deposits funds that automatically transfer to a named beneficiary at the person's death. Decedent retains ownership during his life.

o TOD is a way of designating a named beneficiary to receive securities at the transferor's death.

Example 24: Transferor designates his 100 shares of Silly Corp. Stock transferable on death (TOD) to Betsy Beneficiary.

5. Life Insurance

o Upon payment of premiums, the life insurance company agrees to pay the proceeds of the insurance policy to a designated ______________________ at the insured's death. If the estate is the beneficiary, the proceeds become ___________________assets.

6. Deeds

o A deed can be effective to transfer property at grantor's death if it is delivered unconditionally to the beneficiary prior to grantor's death. Delivery to an escrow agent during grantor's life, for disposition to grantee at grantor's death, is also effective to transfer property.

7. Totten Trust

o It was the method used by depositors to transfer funds to a beneficiary at death prior to the enactment of POD statutes. The depositor retained ______________title and the beneficiary had _____________________ title.

REVOCATION OF WILLS

• A will is ambulatory. It can be changed or revoked any time before death, since it is not effective until death. Revocation can be of the whole will or part of the will. Testator must have the same ________________capacity as required for execution of a will. Revocation can be by writing, by physical act, or by operation of law.

1. By Writing

a. Subsequent Writing

The most common way to revoke a will is by later will or codicil. These documents require a ____________ intent to revoke and must be executed with the same formalities required for execution of a will under the statute of wills. The later will usually contains a phrase revoking all previous wills and codicils.


• A will may also be revoked by a subsequent writing that is not a codicil or new will so long as it complies with the statute of wills. This is rare.

b. Inconsistency

A will can be revoked by a subsequent will that is inconsistent with the first will. If there are inconsistencies the _______________document controls and revokes those parts of the prior will that are inconsistent. To the extent possible, the will and any later documents are read _________________________.

Example 25: T executes will 1 leaving his watch to U and the rest of his property to V. He later executes another document that does not mention will 1, leaving $100 each to W and X. The second will has no residuary clause, so by reading the two wills together, T's estate would be distributed: Watch to U, $100 each to W and X, and the rest to V. Will 2 is treated as a codicil to will 1.

o A later will that contains a residuary clause revokes the first will.

Example 26: T's will gives her entire estate to S. T then creates a later will giving her entire estate to U. The second will revokes the first one because it contains a residuary clause that is inconsistent with the first will.

B. By Physical Act

1. Revocation by Testator or Third Party

o Testator, or some person at the testator's ______________ direction and in the testator's___________________ or someone acting at the testator's express ______________________ direction may revoke a will by physical act by:

Tearing, canceling, obliterating, or destroying it With _____________________ to revoke it

o Ohio law requires that the cancelling or obliterating words touch the ____________of the will.

Example 27: T writes "void" across the entire face of the will. The will is revoked. T writes void in the margin on each page of the will. The will is not revoked because the cancelling words do not touch the language of the will.

2. Presumption against Revocation for Lost or Destroyed Will

o If an original will is lost or ________________before or after the death of the testator it may still be offered for probate.

o The probate court will admit the will if:

The ________________________of the will proves by ______________________________________evidence the contents of the will and

That the will was properly executed.


o The opponent of the will then will have an opportunity to prove by a _____________________ of the evidence that the testator revoked the will.

3. No Partial Revocation by Physical Act in Ohio

o Ohio does not recognize partial revocation by physical act. (The change does not comply with the statute of wills).

If the attempted revocation can be undone, e.g. the will is still readable, the entire will is admitted to probate as if the attempted revocation never occurred.

Example 28: T lined out the following bequest: "The sum of $500 to Nick Noble." Because the attempted revocation is still readable, Nick will get $500.

If the attempted revocation renders the clause or change unreadable, the entire will is generally declared___________________.

C. By Law

1. Marriage

o Ohio law provides that a will executed by an unmarried person is not revoked by a _____________________________marriage.

2. Divorce, Annulment, and Final Separation

o If a testator in Ohio, who has previously executed a will, is later

Divorced, Obtains an annulment , or a final dissolution of marriage, or Enters into a final separation agreement then:

• All will provisions in favor of the former spouse are ____________________ revoked (including gifts, powers of appointment, and nomination of the spouse as a fiduciary). The former spouse is treated as if they had _________________________the testator.

o Any provisions revoked are ____________________should the separation agreement be terminated, or should the testator remarry the former spouse.

3. Afterborn or Pretermitted Heirs

o A pretermitted or afterborn heir is a ___________of the testator who has been unintentionally omitted from the will. Often this is the child born or adopted ____________execution of a will. It can also be a child who was mistakenly believed to be dead. Under Ohio law, such child (or the child's lineal descendants) if the child died prior to the testator's death is entitled:

To receive a share ______________to that which such child would have been entitled to receive out of the estate if the testator had died intestate, with no surviving


_________________, owning only that portion of the testator's estate not devised or bequeathed to or for the use and benefit of the surviving _______________.

Example 29: T executed a will leaving his entire estate to his wife, W. Five years later, T and W adopted G. T died ten years later without ever having changed his will. G is a pretermitted heir, but will receive nothing under the statute, because T left everything to his surviving spouse, W.

D. Revival

• Testator executes Will 1 and later executes Will 2 revoking Will 1. Testator, changing his mind again, revokes will 2. Is will 1 "revived"? It can be revived under three circumstances:

1) Testator can rewrite Will 1 and execute it with the _______________formalities.

2) Testator can __________________ his signature on Will 1 in front of the witnesses who signed it and ask them to resign the document again in accordance with the Statute of Wills. (These are examples of revival by re-execution)

3) Execution of a validly executed codicil to Will 1 that expressly refers to Will 1 (and which was previously revoked by Will 2), will revive Will 1 (This is an example of republication by codicil)

1. Dependent Relative Revocation

o Dependent relative revocation (DRR) is an _______________ doctrine. o Testator has executed Will 1 and then because of some change she wants to make, executes

Will 2. Something usually goes wrong with the execution of Will 2, based on a mistake of _____________ or _______________, that renders Will 2 invalid. Testator tears up Will 1 on the mistaken belief that Will 2 is valid. DRR applies to save Will 1 on the theory that the revocation of Will 1 was conditional on Will 2 being valid.

o It is sometimes called the law of ________________________ because it does not give testator what she really wants, Will 2, but gives her Will 1, instead.

Example 30: Believing that her new will (Will 2) is valid, T revokes Will 1. Will 2 is actually invalid (one witness). DRR applies to say that T would not have revoked Will 1 if she had known Will 2 was invalid and allows Will 1 to remain in effect.

CONSTRUCTION OF WILLS

A. Classification of Gifts

• Property that is given to a beneficiary by will can be classified in different ways. A gift of real property is referred to as a ______________, while a gift of personal properly is referred to as a __________________ or ___________________. Gifts can be further classified with four additional labels:


1) Specific: Specific gifts are specifically identifiable, distinguishable from other gifts.

Example 31: "My engagement ring" or "my writing desk" or "my family bible"

2) General: General gifts are often monetary, but can also be gifts satisfied out of the general estate assets.

Example 32: "$5,000" or "50 shares of Silly Stock Corp."

3) Demonstrative: Demonstrative gifts are ones, which come from a specific source.

Example 33: "$5,000 from my checking account at ABC Bank"

4) Residuary: Residuary gifts are gifts of the remaining property in the estate after all claims against the estate have been paid, and the other three classes of gifts have been satisfied.

Example 34: "I give the rest, residue, and remainder of my property to Meg"

B. Incorporation by Reference

• Incorporation by reference is a way to give ______________________effect to an _________________writing not present at the time the will is signed, and even though it was not executed with testamentary formalities. For incorporation to be effective, the will must:

o Describe the writing as being in _____________________, o Identify the writing with sufficient detail to _______________it, o The writing must fit the_______________, and o The will must show the testator's intent to ____________________it.

Example 35: T's will states: "I incorporate by reference a list of items of jewelry that I own, entitled "List of Jewelry" dated 1/1/10 and located in my firebox at home." The list is titled properly, found in the home firebox, dated correctly and prior to the will's execution. It will be incorporated by reference.

C. Acts of Independent Significance

• This doctrine allows a testator to change the disposition of his property without changing his will by referencing some unattested act or __________, occurring before or after the execution of the will or the testator's death, so long as the act or event has significance apart from disposing of property in his will.

Example 36: T's will gives his car to his daughter. When he executes the will, he owns a Dodge, but when he dies, he owns a Ford. He did not buy this car to change his will, but because he needed a new car; the act of buying the new car was an act of independent significance, and his daughter will get his Ford.


D. Lapse

• Lapse is the failure of a testamentary gift because the beneficiary ______________the testator. The lapsed gift passes to the residue unless the will provides for an alternative _____________.

• In Ohio, a gift made to a relative may be subject to a different rule under the anti-lapse statute. • Anti-lapse statute: Unless the will manifests a contrary _______________________, Ohio's

anti-lapse statute was created to allow the descendants of a ________________relative of the beneficiary who was dead at the time the will was executed, or who dies afterwards leaving lineal descendants surviving the testator, to be substitute takers of the gift that would otherwise lapse.

• Where contrary intent prevails: What language indicates contrary intent?

o Contrary intent prevents application of the statute and the gift will lapse according to the terms of the will. Several Ohio cases have said that words of ___________________ alone are enough to indicate contrary intent (so statute will not apply).

Example 37: T's will gave property to relative "J, if he survives me"; J's living lineal descendants will not take because T's will expressed a contrary intent by requiring J's survival.

Note 3: One Ohio case has required words of survivorship, plus a ________________________________.

Example 38: T's will gave property to relative "J, if he survives me, and if he does not survive me, I give such property to K", J's living lineal descendants will not take because T's will expressed a contrary intent by requiring J's survival, and providing for an alternative disposition, a "gift over" if he did not survive.

1. Class Gift Rule

o Class gifts are a special case. If a member of the class does not survive the Testator, the surviving members of the _____________will take unless the will manifests a contrary _____________; if it does not, the anti-lapse statute may apply.

Example 39: T's will gave property to "my nieces". T has three nieces, one of whom has died before T. The two remaining living nieces will take under traditional class rules.

Note 4: Residuary gifts present special challenges. No residue of a residue rule v. modern rule. Under traditional lapse rules, a lapsed residuary gift goes to the beneficiary's intestate takers, unless the anti-lapse statute applies. Modern rules would let the remaining residuary beneficiaries split the gift. If testator gives the residue to X, Y and Z, and X dies before the testator, then Y and Z would split the entire residue.


E. Abatement

• Abatement comes into play when the decedent's debts and gifts are greater than the estate assets. Unless the testator indicates a contrary order of abatement, the law ______________ the order in which gifts are to be abated or reduced. This order is:

1) Residuary gifts abate first

2) General gifts abate next

3) Specific and demonstrative gifts abate last

• Residuary beneficiaries are the first to lose their gifts in the event of an insolvent estate, and specific and demonstrative beneficiaries are the last.

• Gifts within each class usually abate ratably or in proportion to their relative values.

Example 40: Assume that T's residual and general gifts have been abated to pay debts, and that the estate must still pay $10,000 worth of debts. T's will has two demonstrative gifts yet to be distributed: "to A, $15,000 from my savings account at ABC Bank" and "to B, $5,000 from my savings account at XYZ Bank."

To determine the proportional amounts of A's and B's liability, add A's and B's gift amounts together: $15,000 + $5,000 = $20,000. Next determine the proportion of A's liability by dividing A's gift amount by the sum of A's and B's gifts, $15,000/$20,000 = 3/4, and likewise with B's gift, $5,000/$20,000 = 1/4. Finally, multiply the remaining estate debt of $10,000 by each of the respective proportions to determine the proportional amounts that each beneficiary will pay. A will pay 3/4 of the $10,000 debt or $7,500, and B will pay 1/4 of it or $2,500.

F. Ademption

• There are two types of ademption: ademption by extinction applying to specific gifts and ademption by satisfaction applying to general gifts.

1. Ademption by Extinction

o Ademption by extinction applies to _________________ bequests and devises, that are no longer a part of the testator's estate at death because they are missing or destroyed, or _______________. It does not apply to an _____________________ testator.

Substantial change: Only substantial changes will adeem the gift, but not nominal (minor or formal) changes.

Example 41: Nominal change: T gives S the money in her "savings account at Handy Bank." Handy Bank changes its name to Easy Street; the gift is not adeemed.


Example 41A: Substantial change: If T took the money from the account and purchased securities, the gift would adeem and S would get nothing.

Testator intent: Generally, Testator intent is _______________________, but because the ademption rule is harsh, many courts have avoided it by reclassifying gifts as general or finding changes in form to be nominal.

Partial ademption and beneficiary entitlement: If property has been partially adeemed, the beneficiary will be entitled to whatever is left of the specific gift.

Example 42: T gives G 75 shares of Bounty stock. After the will is executed, and prior to his death, T sells 50 shares to H. To what is G entitled when T dies? ___________________

a. Ademption Rules for Securities

Pre-death changes: The gift of a security normally includes any additional securities acquired solely as a result of the testator's ownership; these would include stock splits, stock dividends, reinvestments, and merger. It does not include pre death cash ______________ or distributions.

Post-death changes: The beneficiary is normally entitled to post death income such as interest, _______________, and rent.

2. Ademption by Satisfaction

o Testator bequeaths a ______________gift by a will and then gives that property to the beneficiary while testator is still living. It requires that testator ______________ to satisfy the gift at the time it is given.

G. Exoneration of Liens

• Ohio law dictates that a lien on specifically devised real property will not be ________________ (paid out of the estate) unless the will directs it to be.

Example 43: T devises his house to E. The house is subject to a mortgage of $50,000. E takes the house subject to the mortgage.

RIGHTS OF SURVIVING SPOUSE

A. Elective Share

• Surviving spouses who have been disinherited or left a small sum by their spouse's will have a choice between taking the gift under the will or taking an ___________________ share.

o Spouses who are given their spouse's entire estate are presumed to elect to take under the will unless he or she manifests a ___________________intent.


1. Amount of Share

o The surviving spouse can get one of two amounts depending on the number of lineal descendants surviving the decedent. The share is calculated on the _________ estate, but before payment of federal estate taxes.

1) ____________children or 1 child and his/her lineal descendants then the surviving spouse is entitled to a share not to exceed ______the net estate.

2) ____________ or more children or their lineal descendants then the surviving spouse is entitled to a share not to exceed________ the net estate.

2. Time and Procedure for Election

o Generally, the election must be made no later than ______ months after the initial appointment of the fiduciary. It is _____________________presumed that the surviving spouse has waived any right not exercised within the _______month period.

3. Election by a Spouse under Legal Disability

o If a surviving spouse is unable to make an election because of a legal disability such as ___________________, the court will appoint a suitable person to evaluate the facts and circumstances of the case so that such person can make a _________________________ to the court about whether election against the will would be in the best interests of the spouse.

o The court will decide whether to ____________for the surviving spouse if it finds such election to be in the ____________________________to provide adequate support for the surviving spouse during his life expectancy.

4. Death of Surviving Spouse

o If the surviving spouse dies before the probate of the will or before exercising the right to _____________, there is a _____________________presumption that the surviving spouse has elected to take under the __________.

B. Spousal Support

1. Family Allowance

o When a spouse and/or minor children of a decedent survive, the family allowance is __________________.

o The spouse takes 100% of the family allowance unless there are minor children who are not the ______________________ children, in which case the court will equitably distribute the funds.

2. Mansion House

o Surviving spouse may remain in the mansion house, ___________________ for 1 year, except such house may be sold during that time to satisfy decedent's _______________.


3. Automobiles

o Two automobiles owned by the decedent at his death may be transferred to the surviving spouse provided they are not specifically ____________ of in the will, or transferred to the spouse due to joint ownership. Total value of both autos cannot exceed _____________.

Note 5: If two autos are selected, the less valuable automobile is deducted from the spouse's share of the family allowance.

4. Watercraft or Outboard Motor

o The spouse may select one watercraft and one outboard motor, or one of each, provided they are not specifically _________________ of in the will.

C. Federal Rights

1. Social Security

o A surviving spouse is eligible for a worker's _________________benefit.

2. Pension Plans

o ERISA requires pension plans to give spouses _____________________ rights, but this right can be _______________________, subject to strict requirements.

D. Bars to Succession

1. Homicide

o Ohio prohibits from inheriting from the decedent's estate any person who:

_________________of Pleads _____________to, or Is found not guilty by __________________________________ of a violation of or

complicity in the crimes of:

• Aggravated murder • __________________ • Voluntary _______________________________

o Such person's share shall pass as if he ____________________________the decedent.

Example 44: T's will gives everything to his son, S. S, in need of money and learning of the will, kills T. S will be treated as having predeceased T for purposes of distributing the property T left to him by will. Since S is T's only surviving child, and S has no children, T's property will pass to his other heirs via the intestate statute.

a. All Forms of Transfer Barred

The killer is barred from taking the decedent's testate gifts and intestate property, or from receiving the proceeds of _______________________. The killer also loses any


rights of ________________________ with respect to joint tenancy or joint bank account and any spousal or elective share rights.

b. Standard of Proof

If a person who is barred from benefitting is adjudicated

• Incompetent to stand trial or • Found not guilty by reason of insanity,

This person, or a third party on his or her behalf, may file a complaint in probate court to determine whether the person may ___________________ from the death.

o This right to benefit shall be restored, unless the court decides by a ______________________ of the evidence that the person would have been convicted if brought to trial.

2. Parental Abandonment

o Ohio law prohibits a parent who has abandoned a minor child from inheriting an intestate share from that child. The parent is treated as if he or she ______________________ the child.

o Abandoned means that the parent failed without ______________ cause to communicate with the minor, care for him, and provide for his __________________ or ______________ as required by law for a period of a least ____ year immediately prior to the minor's date of death.

a. Procedure

If the administrator has actual knowledge of abandonment, or ______________ cause to believe there was abandonment a petition to obtain an adjudication of disqualification must be filed.

The administrator has the burden of proving by a _______________________ of the evidence that the parent ________________________ the child.

b. Timing

A proceeding to disqualify a parent must be commenced within ____months of the fiduciary's receipt of letters of administration.

3. Disclaimer

o A beneficiary or heir may disclaim his or her share of a decedent's estate. In Ohio, the disclaiming party is treated as if he or she ____________________ the decedent and the disclaimed property passes by will or intestacy to the next eligible taker.

a. Property Subject to Disclaimer

Distributed by ______________________


An intestate share Life insurance proceeds _______________ tenancy property

b. Contents

An Ohio disclaimer must be in writing, signed, and ____________________ by the person disclaiming and contain the following:

• Reference to the _____________________instrument • Description of the property or __________________being disclaimed • Declaration of the ________________________and its extent

c. Delivery and Filing

A copy of the disclaimer must be __________________delivered or sent by ___________________mail to the person who has legal title to the property being disclaimed; it must also be filed in the probate court where the decedent's estate is being administered.

d. Timing

The disclaimer must be delivered, filed, or recorded prior to the beneficiary accepting any benefit of the disclaimed interest.

Note 6: Different rules apply for federal estate tax purposes.

e. Actions that Prevent a Disclaimer

Generally a beneficiary or heir cannot disclaim property after accepting it, or any of its benefits, including assigning it or contracting to assign it, permitting its sale, or waiving in writing the right to disclaim.

o Disclaimer cannot be used with intent to defraud a creditor or defeat a tax lien.

f. Disclaimer on Behalf of a Legally Disabled Person

A third party can make a disclaimer for a person under legal disability if the court consents after a finding that:

• It is in the ___________________of the heirs and beneficiaries of decedent's estate and

• It would not materially, adversely affect the person.

g. Present and Future Interest

Unless a contrary intent is expressed, a person who disclaims a present interest, in whole or in part, is considered to have disclaimed the future interest to the same extent.

Note 7: Disclaimers are most often used to save taxes.


GROUNDS FOR WILL CONTESTS

A. Testamentary Capacity

• There are four elements to testamentary capacity required at the time of will execution:

1) Understand the nature of the __________________ in which testator is engaged (i.e., understand executing a will)

2) Generally comprehend the ___________and ___________of his property

3) Hold in his mind the names and ________________of those who have natural claims on his ___________ (normally those related by consanguinity, but usually includes spouse)

4) Be able to appreciate his relationship to members of his__________________

• Burden of proof: The person alleging testamentary incapacity has the burden of proof. Only those parties who would financially ________________ if successful have standing to __________________.

• Testamentary capacity is judged as of the date the will is _____________________or revoked.

Example 45: T suffers from early stage Alzheimer's disease. T has good and bad days, where she forgets names or relationships, but T is lucid during the period she executes her will. T tells attorney she wants her property to go to her children and grandchildren at her death and that she knows the will leaves it to them. T knows she owns a home, and has some stock, all worth around $300,000. T's will should be valid because she possesses testamentary capacity.

B. Insane Delusion

• Insane delusion relates to a belief unsupported by factual or rational explanations. Any will provisions that are a result of the delusion are _______________. Many courts require a "__________________" causation, a showing that the testator would not have disposed of the property in the same manner but for the _____________________ delusion.

• The burden of proof is on the party ____________________insane delusion.

Example 46: T believed he had no children even though he lived with his two children from his first marriage for twenty years. T's will recited that he had no children and that he was leaving his entire estate to his neighbor. The children must prove that "but for" his insane delusion (that they do not exist) T would not have disposed of the property by giving it to the neighbor.

C. Undue Influence

Note 8: Contests based on lack of capacity often include an additional claim of undue influence because these two contests often arise from similar factual situations.

1. Elements

o A "__________________________" testator


o Another's opportunity to exert _____________________________ o The _________________of improper influence exerted o The result showing the __________________ of such influence o Other factors to consider are whether there was any secrecy or haste, the extent of change

in the testamentary plan, the existence of independent advice, and the beneficiary's participation in the execution of the will. Influence in the form of advice or persuasion alone are not sufficient to prove undue influence, but will be considered in determining if undue influence exists.

2. Burden of Proof

o The burden of proof rests on the contestant to show the influence and that the effect was to overpower the __________ and the __________ of the testator.

o Once a confidential relationship is found (a relationship based on trust), a presumption of ____________________________________ arises, and the burden shifts to the beneficiaries to show by a ___________________________ of the evidence that such influence was not exercised.

3. Timing of Influence

o Undue influence must be exerted at the time of __________________ or revocation of a will.

4. Presumption of Confidential Relationship

o A presumption of undue influence arises when a beneficiary under the will had a _____________________ relationship with the testator at the time the will was executed.

o Some common presumed confidential relationships are:

Doctor and ___________________ _____________________and client Attorney and __________________ ____________________ and penitent

o A confidential relationship is one in which trust and confidence are placed in the integrity and fidelity of another.

5. Beneficiary

o A beneficiary who exerted undue influence is treated as though he or she _________________________ the testator to the extent his or her gift exceeds his or her __________________________ share of testator's estate.

Example 47: Lonely ninety-year-old T lives alone. B, who visits her daily, befriends her. T has a niece, N who lives in a distant city, but has not seen her in 20 years. A month before her death T decides to contact a lawyer and change her current will leaving her estate to N, to one in which she leaves $20,000 to B,


and the balance ($200,000) to N. T told the lawyer she wanted to thank B for her kindness. Later, she told B about the will, but B told her a gift was "unnecessary." T died and N is contesting the will charging undue influence.

A confidential relationship between T and B would have to be proved. Although B had opportunity to influence T, there is no evidence that B did, despite T's "susceptibility." The change in T's will may not be considered drastic. T seemed closer to B than with N. It is doubtful undue influence exists on these facts.

D. Fraud

• Fraud is intentional deception by someone affecting the terms of the testator's will. It must be present when the will is ______________. A will or will provision procured by fraud is _______.

1. Elements

o Misrepresentation by the _______________________, with both

The ___________________ to deceive the testator and The _____________________of influencing the testator's disposition.

Note 9: Exaggeration or innocent misrepresentation does not amount to fraud.

2. Two Types of Fraud

o Fraud in the ___________________ is when someone gets the testator to execute a document by misrepresenting ______________that serve as an inducement for the execution of the will or the inclusion of a certain disposition.

Example 48: Brian tells T he is his lone surviving relative and that his sister, Sue, T's niece has died when he knows this is not true to induce T to change his will and leave everything to him.

o Fraud in the _______________________is when a testator is deceived as to the nature or contents of the document he or she is signing.

Example 49: T signs her will not realizing that her attorney has inserted a provision leaving a substantial gift to himself.

• Remedy: Often, the remedy for any alleged fraud is a _________________________ trust to prevent unjust enrichment by the defendant. A person who objects to a will on fraud must contest the will's ____________________ to prove the fraud.

E. Mistake

• The traditional rule is that there is no remedy for mistake. • Courts have held that to the extent that a mistake eliminates the element of testamentary

___________________ there is no will. • If the testator signs the wrong __________________ in the mistaken belief it is his will, there is

no will.


1. Omissions/Inclusions

o Omissions: If a provision is mistakenly omitted from a will, most courts will not ________________ the will to include it unless there is evidence of wrongdoing.

o Inclusions: If a provision is mistakenly included, however, a court may omit it when the will is admitted to probate if doing so would be in accordance with testator's __________________.

2. Mistake of Material Fact

o Aka Mistake in the inducement: If a testator executes a will on the basis of an innocent mistake of material fact, a will is generally _______________________.

Example 50: T, believing F is dead, excludes him from her will. F is actually alive. Her mistake of material fact will not invalidate the will.

F. Ambiguities

• The modern trend has been to allow ___________________ evidence to resolve both _______________ ambiguity, which exists when the language of the will is clear on its face, but susceptible to more than one meaning, and _______________ ambiguity, which is evident on the face of the will.

Example 51: Latent: T leaves a gift to her friend G. T has two friends named G. Extrinsic evidence would be permissible to identify which friend T intended.

Example 52: Patent: T gives "H, one of my two Hummel figurines." On its face, the will does not reveal which one of two figurines H is to receive. Extrinsic evidence would be permissible to identify which Hummel T intended.

• If an ambiguity cannot be resolved, then the gift ________ and passes as part of the_________.

G. Provisions in Restraint of Marriage

1. Absolute Restraint

o Absolute restraints on marriage are ______________ as against public ________________, except that such rule does not apply to a ________________ marriage of a widow or widower.

o Requirements that a beneficiary marry with the consent of a trustee or executor who would profit from refusing consent are also ______________.

Example 53: Grantor, G created a trust giving his daughter D income for life, with the remainder to D's issue if she married someone approved by her brother B, the trustee named in the trust. If B refuses consent, the remainder goes to B. The court would find this to be an invalid restraint on marriage because it would be in B's best interest to refuse consent.


2. Partial Restraint

o Partial restraints on marriage, provisions whereby an individual forfeits her gift if she marries a _________________individual, or one of a particular faith, are not against public policy and are interpreted as a _______________________ restriction on marriage.

Example 54: T left property to his children with a provision revoking any gift to a child who married a person "not born in the Hebrew faith". Child C married a Roman Catholic girl, G who converted to Judaism. C will likely lose his inheritance because G was not born in the Hebrew faith. This partial restraint on marriage likely will be upheld.

H. No-Contest (Forfeiture) or In Terrorem Clause

• A no contest clause is one that provides that a gift to the beneficiary is __________ if the beneficiary contests the will. Generally, they are upheld if the will is contested without probable cause; however, in the presence of probable cause most modern courts refuse to enforce no contest clauses.

Example 55: T wrote a will leaving a nominal gift to his Child C and the remainder of his entire estate, to his church. He had a no-contest clause stating that if C contested his will, C would forfeit her gift. C files a contest based on undue influence and lack of capacity. If the court finds C's contest has probable cause, they will refuse to enforce the no contest clause. If they do not find probable clause, C will lose her $20,000.

WILL CONTRACTS, JOINT WILLS, AND PROBATE

A. Will Contracts

• Will contracts include:

o Contracts to ________________ a will o Contracts to _______________ a will o Contracts to die _____________________

1. Requirements

o Contracts must be in writing. o Signed by the __________ or some other person at such maker’s express direction o If signed by someone other than the maker the instrument must be subscribed by ________

or more competent ___________________ who heard the maker __________________ it was signed at his direction.

o If the contract concerns real property, it must comply with the Statute of ____________.


B. Joint and Reciprocal Wills

• Joint: A joint will is a ___________document executed by two or more persons intended to serve as the will of each. These wills are subject to much litigation and many lawyers avoid them.

• Reciprocal: Reciprocal or mirror wills are wills of _______ or more persons with _______________________________________ provisions.

• In Ohio, the mutual execution of a joint or reciprocal will does not create a presumption of a _______________ not to revoke the will. If a person changes the disposition of his or her will and a contract not to _________ is proven, a constructive trust may be imposed for the original beneficiaries of the will.

Example 56: Husband H and Wife W execute wills in which each gives the surviving spouse the estate, and when the second spouse dies 1/2 to H's parents and 1/2 to W's parents. They orally agree the other will not change his or her will. If after W dies, H changes the terms of the reciprocal will to give everything to H's parents, W's parents cannot challenge the revocation because no written contract not to revoke existed. Had the contract not to change the will been in writing, the court could have imposed a constructive trust to give 1/2 to W's parents.

C. Probate

• Probate is the process under which a document is officially established as the _____________ will of the testator, or the process by which the estate of a person who dies without a will, the ____________________ decedent, is admitted to administration.

• Probate is also the process of collecting probate assets, satisfying creditors, and distributing the remaining assets to the beneficiaries.

1. Ante-Mortem Probate

o Ohio has an unusual law that allows a testator to declare the __________________________ of the testator's will while he or she is still living.

Notice to all potential ______________________under the will and _________, (who would be entitled to take under the statute of descent and distribution) is required.

If the court finds the will to have been executed properly they will declare it _________, a judgment that is then binding in Ohio unless the will is subsequently ____________ or revoked in accordance to the law, or the testator removes the will from the possession of the court.

Note 10: This device is sometimes used when T or his lawyer expects a will contest.


2. Post-Mortem Probate

o For intestacy, the court will appoint an ____________________ or personal representative, a fiduciary responsible for administering the intestate's estate.

For testate decedents, the court will probate the will and appoint the ____________________ named in the will to oversee the administration of the estate.

Only probate property is passed through probate. Non-probate property is a will substitute disposed of in accordance to the terms of the contract.

3. Jurisdiction

o Generally, the state in which the decedent was ______________ at his death has jurisdiction over the decedent's personal property and any real property in that state.

o If the decedent owned real property in another state, that other state has jurisdiction over the disposition of such real property. An _________________ administration will be opened there.

Example 57: T is domiciled in Ohio. T has a validly executed Ohio will leaving his personal and real property located in Ohio to his surviving spouse, S ,and his hunting cabin, located in West Virginia to his brother, B. At T's death, Ohio law will govern the disposition of his personal and real property in Ohio given to S. By means of an ancillary administration proceeding, West Virginia law will govern the disposition of his hunting cabin given to B.

4. Notice

o Unless notice is waived, the personal representative must serve notice of the probate of the will on:

The surviving spouse All ___________________ All _________________________ under the will

o No notice need be provided if the executer cannot with reasonable diligence, ascertain the names and places of residence of any of the parties above.

5. Limitations on Will Contests

o A will contest must be brought within ______ months of the personal representative's filing of the certificate stating that all appropriate parties have received notice of the probate of the will. A person under any legal disability may contest the validity of the will within 3 months of the removal of the disability, but purchasers for value and fiduciaries who acted in good faith are protected from liability.


6. Standing to Contest

o Only those parties who stand to ______________ financially may contest a will. These include:

Beneficiaries under a current or prior will, or Creditors of a testator.

o This excludes those that might benefit indirectly, such as spouses of beneficiaries under prior wills, or creditors of beneficiaries and pretermitted heirs.

D. Personal Representative

• Named in a will is called an __________________________ • Appointed by the court, such as in cases of intestacy is called an ________________

1. Principal Duties

o ___________________ and collect assets of the decedent o Manage the _________________ during administration o Receive and __________________ claims of creditors and tax collectors o ______________________ the remaining assets to the appropriate parties

2. Fiduciary Duty

o A personal representative is a fiduciary owing the highest duty of loyalty and care to the estate.

o She is appointed by the court and is not discharged from duty until the court grants the discharge.

o She is strictly prohibited from obtaining a ________________from the trust instilled in him or her.

3. Closing the Estate

o The personal representative is charged with completing the administration and distributing the estate assets ____________________ (9 months – 1 year of death).

o He or she must seek judicial approval of his or her actions in order to be released from ________________________________________.

[END OF HANDOUT]

oh.h.blenkhorn.wills s14 blanks 10.09s3.amazonaws.com/mythm-vids-prod/oh.blenkhorn.wills.pdfexam tip...

Documents