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Trusts and Estates
University of Toledo School of Law
Chapman, Douglas K.

*Final will be in either a UPC state or OH
 
I.                    Introduction
a.       Right to pass property at death-
                                                               i.      not in the constitution, it is given to you by the state. 
                                                             ii.      There is no right to pass property
                                                            iii.      Each state has control over how the state will allow property to be transferred at death. There is no universal law.
1.       you are not required to leave property to anyone, but statutorily you have to leave some to your spouse.
2.       in ohio can get around this by not leaving anything in your probate estate- must states don’t allow this
                                                           iv.      1972- original universal probate code (UPC)
1.       revised in 1990
b.       Who owns land?
                                                               i.      A state owns the land after a person dies with no heirs and intestate. 
                                                             ii.      If you create a will in OH, and you have a condo in FL, then you must probate the will in FL. The state will not give up their right to the land unless the will is in their state.
c.       types of cases
                                                               i.      Litigation always occurs after client is dead.
                                                             ii.      People bring suit on whether the person was of sound mind when they wrote the will.
d.       wills
                                                               i.      try and use short sentences, do not use adjectives.
                                                             ii.      A formal document of a person’s desire as to how their property should be distributed at their death
                                                            iii.      A noncupulative will (oral)- only 5 states recognize
                                                           iv.      Provides a mechanism to nominate a person to take care of children incase of death of both parents, handle affairs when die, etc
                                                             v.      Must have mental capacity to create
                                                           vi.      When creating a will as an attorney you CANNOT write yourself into the will
1.       except can do for immediate family (spouse, parents, children, siblings)
2.       check with state ethics
                                                          vii.      Ambulatory- revocable until moment of death- not operative until death
                                                        viii.      In England wills were for real property and testament were for personalty (“The Last Will and Testament”)- not distinguished today
e.       intestate recession
                                                               i.      default position, person did not leave a will
                                                             ii.      statutory scheme put in place by state legislatures to deal with an individuals property at the time of death when the individual has failed to direct that property him/herself
                                                            iii.      can have a will and still have intestate recession- occurs when the will leaves something out or the will is invalidated, doesn’t happen very often
f.        terminology
                                                               i.      intestacy- have died without a way to determine how their property will be distributed
                                                             ii.      intestate- person who died without a will
                                                            iii.      testate- person(testator) who has a will
                                                           iv.      executor- supervise estate of an individual who has died, named in your will- however, court can appoint someone else if they do not believe the person nominated is suitable. If female called executress. 
                                                             v.      Administrator/tress- person appointed by the court if you did not name in your will to supervise estate or if passing by intestacy
                                                           vi.      Personal representative- universal term for executor/administrator (tresses)
                                                          vii.      Devise- how you distribute real property (not for money)
                                                        viii.      Bequest- how you distribute personal property
1.       now you usually devise everything
                                                           ix.      descend- real property was said to descend if died without a will (passed on down the line to children, not up to parents)
                                                             x.      distributed- personalty was given to anyone- could go laterally
                                                           xi.      heirs- do not have any until you die
1.       blood relationship OR marriage (in most cases now)
2.       historically 3 groups all by blood
a.       ancestors- parents, g-parents, etc (up the line)
b.       lineal- child, g-child, etc (down the line)
c.       lateral?- brothers, sisters
g.       3 focal points
WILLS
INTESTACY
WILL SUBSTITUTE
1. In probate court
1. in probate court
1. not probate court
 
2. property not passing by will and not otherwise disposed off
2. stuff disposed of otherwise and wills have no control over.
 
 
Ex: life insurance (don’t care about what’s in will go by what is in policy), Joint Tenancy (get full ownership immediately upon death/can’t change by will), joint bank accounts, trusts, pension plans/IRAs, transfer upon death deeds
h.       Probate (court)
                                                               i.      Definition: proof
                                                             ii.      Probate court- deals with wills, property of decedents that passes through wills or intestacy
1.       subdivision of common pleas
                                                            iii.      Process with a will: submit to probate court. Once a person dies, they admit the will to court once it has been proved. (signed, witnessed, formalities)
1.       Letters testamentary- official letter from probate court that designates a personal representative for a decedent and authorizes what they can do. Today called a journal entry. 
2.       The personal representative must find all the potential beneficiaries and notify them. They then must submit to the admission of the will. Gives them a chance to protest the will.
3.       Who has standing to claim a will is invalid?
a.       the people who would take the property if there were no will
b.       if found invalid it passes through intestacy
4.       Appraisal of assets- put a value to the real property, trusts, stocks, etc
a.       estate (personal representative) will hire an attorney and he will appraise the assets or find someone else to do it.
b.       the estate will have to file several taxes and will need an attorney for this as well
c.       as lawyer you can charge by the hour (simple estates) or set percentages for how much the estate is worth
d.       the personal representative can hire himself to do these things and get paid as

iving spouse does not have surviving descendents of her own. 
                                                            iii.      Surviving spouse gets {$200,000} and ¾ of remaining balance if the decedent has a surviving parents and no surviving children.
                                                           iv.      Surviving spouse gets $150,000 plus ½ of estate if all of the descendents surviving the decedent are the descendents of the surviving spouse, but she has descendents of her own
                                                             v.      Surviving spouse gets ½ of estate plus $100,000, if all of the descendents of the decedent are not descendents of the surviving spouse
c.       §2105.06- distribution of property (OH statute for intestacy)
                                                               i.      if no surviving spouse, property should pass to children or lineal descendents
                                                             ii.      if there is a surviving spouse and 1 or more descendents or lineal heirs and are also descendents of the surviving spouse, surviving spouse gets everything
                                                            iii.      if there is a surviving spouse and there is one descendent that is not the surviving spouse, then the surviving spouse gets $20,000 plus ½ of estate go to the surviving spouse and the rest to the descendent. 
                                                           iv.      When there is more than one descendent that is not the surviving spouse, then the surviving spouse gets 20,000 if she is the natural/adoptive mother of none, and 60,000 if she is the natural/adoptive mother of at least one, plus 1/3 of estate. The remainder to the children equally
                                                             v.      If no children or lineal descendents the entire estate goes to the surviving spouse.
                                                           vi.      If no surviving spouse or children, then the estate goes to the parents
                                                          vii.      If none of the above to the brothers and sisters- half or whole
                                                        viii.      If no brothers or sisters, ½ to maternal g-parents and ½ to paternal g-parents
                                                           ix.      If no maternal or paternal g-parents or lineal descendents of them, if none, then to next of kin
                                                             x.      If no next of kin, then to the step children
                                                           xi.      If no step children then to the state
d.       Representational system
                                                               i.      Comes into play when lineal/collateral descendents get moved up (take the position of someone normally ahead of them)
                                                             ii.      two system
1.       per stirpes-
determine the primary