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Wills, Trusts, and Estates
University of Dayton School of Law
Searcy, E. Dale

·         Sample Exam on reserve
·         All multiple choice, 65 questions
·         Bring anything you want (notes, Ohio Probate Code, calculator (add, subtract, multiply, divide), etc)
·         Wills & Trusts Generally
o        Methods of transferring property at death
§         Will (Probate Assets)
§         Intestate Succession (no will)
§         State law (affects non-probate assets)
§         Trusts
o        Key Terminology
§         Testate – A person who dies with a duly executed will dies testate.
§         Intestate – A person who does without a will dies intestate.
§         Testator – A person who has written a will.
§         Decedent: Dead Person
§         Devise: Real Estate passed via will
§         Bequest: Personal Property passed via will
§         Devisee: Receives real property via will
§         Legatee: Receives personal property via will
§         Codicil: An Addendum or amendment to a will
§         Holographic Will: A document in the client’s own handwriting but not witnessed. Usually not recognized.
§         Executor: Person who implements the will in a probate estate
§         Administrator: Someone who administers the estate if there is no will
§         Probate: Process of figuring out the will and transferring the probate assets
§         Assets
·         Probate Assets: Assets that are controlled by the Probate Process and passed pursuant to will
o        House, Care, Bank Account, Property held as Tenants in Common
·         Non-Probate Assets: Assets that are not controlled and passed pursuant to person’s will, but rather are transferred in accordance with the law (trump any wording in will that passes this property)
o        Property held as JTWROS (passes automatically to survivor with joint ownership)
o        Accounts that are Joint w/ Rights of Survivorship (trumps the will)
o        Life Insurance Policies (pass to beneficiary, not through will)
o        Retirement Plans (pass to beneficiary: IRA, 401(k), Profit Sharing Plans)
§         Trusts
Device for separating legal from beneficial ownership of property
Many different types of trusts
Revocable living trusts
A fiduciary relationship with respect to property in which title and beneficial owner are separate.
The trustee holds title to and manages the trust property for the benefit of another person or persons, who are called the beneficiary or beneficiaries. A lifetime trust can be irrevocable or revocable. It remains revocable until the settlor’s death. 
It operates as a will substitute and serves the function of avoiding probate.
Will substitutes differ in 3 ways
Asset specific
Avoid probate
Not governed by the formal rules of the wills act
There are four main will substitutes,
Life insurance
Pension accounts
Joint accounts
Revocable trusts
Use trusts because:
If have someone with minor children or adult children… if want to defer enjoyment of benefit to that particular person… the ideal way to do that.
Save on Estate Taxes
Provides probate avoidance
Say something is probate… goes through probate court administration
Living trust is non probative… living trust goes into effect as soon as you sign in (could name living trust as a beneficiary)
·         Components
o        Grantor (creates and funds the trust)
o        Trustee (controls the trust)
o        Beneficiary (person who receives the benefits of the trust)
·         Process
o        Grantor creates Trust (may or may not fund trust while alive)
§         Upon death, can have pour-over-will, fund the trust
o        Grantor picks Trustee to run the Trust
o        Grantor tells Trustee what to do with the Trust Assets upon Grantor’s death
§         Usually designated to beneficiary over time, etc.
o        3 Essential Functions Probate Performs
§         Making property owned at death marketable again (title clearing)
§         Paying of decedents debt
§         Implementing the decedents intents with respect to the property that remains.
o        General Process of Estate Administration
§         1) Person dies
§         2) Create Estate (Probate Estate)
§         3) Estate Administration (date of death à date of distribution)
·         a) Appoint personal administrator (if no will) / executor (if will)
o        Will can appoint/designate the executor
o        If not appointed, state has rules of picking personal administrator or executor
o        Someone can volunteer (so long a

lth Care
Purpose: give someone the legal authority to make medical decisions for another
It allows someone to make health care decisions if you cannot make them for yourself
If someone does not want to have a living will (don’t trust doctors)… allow that person to make the decision.
Without HCPOA
Rules of Probate Court dictate what will happen for incompetent people
Must remain on life support for one year, then family may petition PC for right to pull the plug
Ways a person can avoid probate (statutory options through the Ohio Code or they are contractual)
1 – Options where there is a contract beneficiary
K where you can name a beneficiary
Most common example is life insurance
By doing that… something happens to decedent… everything goes directly to beneficiary
2 – Retirement Accounts (IRA… 401K)
Go directly to whoever you name beneficiary
Goes into effect as soon as you sign it
Can name things like trusts and charities and beneficiaries
3 – Annuities
Can directly name a beneficiary on an account
4 – Payable on Death Account (POD) (Statutory opposed to Contractual)
Gives someone future interest in that particular account (CD’s… checking accounts…)
Example: Have certificate of deposit where daughter has no interest upon death of father
Who can be a beneficiary on a payable on death account?
Could name a Trust
What happens if there is a divorce? Leave it to someone no longer married to?
5815.33 – Person is disinherited… nullifies it
Even if that is set up and you forget taking that spouse off of it… still okay… applies to life accounts and anything else you have designated a beneficiary.
If wanted to keep it with ex-spouse… then would go back in and designate it to “ex-spouse”