1. Florida Wills Rules Flashcards
What are lineal ascendant? What are lineal descendants?
Lineal ascendants include parents, grandparents, etc. Lineal descendants include children, grandchildren, etc.
What is a collateral heir?
Collateral heirs are siblings; meaning two people who stem not from one another but from a common ancestor.
What is per stripes distribution?
Per stirpes distribution means that the descendant of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir.
What is per capita distribution?
Rule for distribution in most states and under the UPC where the stirpital shares are determined at the first level at which there are living takers.
What rule does Florida follow for intestate succession purposes?
Florida follows strict per stirpes.
What is strict per stripes?
Stirpital shares are determined at the first generational level, whether or not there are any living taker at that level.
When does the surviving spouse take the entire intestate estate?
When the decedent is survived by descendants, all of whom are also descendants of the surviving spouse and the spouse does not have any other descendants or the decedent leaves no surviving descendants.
When is the surviving spouse entitled to one-half of the intestate estate not passing to the decedent’s descendants?
If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other.
The right of a spouse to inherit from the decedent is conditioned on the existence of the what?
Marital relationship at he time of death so divorce severs this relationship but legal separation does not.
How is the portion of the estate not going to a surviving spouse distributed to other heirs?
Descendants, per stirpes;
Parents or the surviving parent;
Siblings and their descendants, per stripes;
1/2 to paternal grandparents and 1/2 to maternal grandparents and their descendants, per stirpes (both halves to one side if no takers not the other side;
Kindred of the last deceased spouse, as if she had survived the decedent and then died;
Failing that, the estate escheats to the state..
For the purposes of intestate succession, adopted children are treated as what?
Adopted children are treated the same as natural children of the adopting parents.
IS there inheritance in either direction between adopted children and their natural parents?
No except where an adopting parent marries one of the natural parents or the child is adopted by a close relative.
Any parent natural or adoptive, disbarred from what?
Inheriting from a child if that parent’s parental rights were terminated.
Generally, step children and foster children have what inheritance rights, unless adopted by the stepparent or foster parent?
Generally step children and foster children have no inheritance rights, unless adopted by the stepparent or foster parent.
What doctrine applies when legal custody of a child is gained under an unfulfilled agreement to adopt him.
The Doctrine of adoption by estoppel allies when legal custody of a child is gained under an unfulfilled agreement to adopt him.
In Florida, heirs conceived before the decedent’s death, but born thereafter inherit intestate property as if they had what?
Heirs conceived before the decedent’s death, but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime.
Children born out of wedlock are heirs of who but not who, unless what?
Children born out of wedlock are heirs of the mom but not the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing.
What are half bloods?
Half-bloods are siblings with only one common parent.
Florida provides that half bloods take what proportion in relation to whole bloods, except where what?
Half bloods take half as much as whole bloods, except where all collateral kin are half bloods.
Do most states and the UPC make distinction between half bloods and whole bloods?
Most states and the UPC do not make distinction between half bloods and whole bloods.
What is the only way to disinherit an heir in Florida?
The only way to disinherit an heir in Florida is to dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent’s express wishes.
Has Florida adopted the Uniform Simultaneous Death Act?
Florida has adopted the Uniform Simultaneous Death Act.
What does the Uniform Simultaneous Death Act provide for?
The Uniform Simultaneous Death Act provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he ad survived the other.
In the case of a tenancy with right of survivorship, how much of the property passes through the estate of each.
1/2 of the property passes through the estate of each.
The USDA applies unless what?
Unless there are specific country provisions in the will or other instrument.
Florida has or has not adopted the UPC and revised USDA rule for Intestacy and Wills?
Florida has not adopted the UPC and revised USDA rule for Intestacy and Wills.
What does the the UPC and revised USDA rule for intestacy and wills say?
It requires a person to survive a decedent by 120 hours in order to take property as an intestate heir, will or life insurance beneficiary, or surviving going tenant.
Under Florida’s Uniform Disclaimer of Property Interests Act, a beneficiary or heir may disclaim an interest when?
When disclaiming the interest results in the interest passing as though the disclaimant died immediately before the interest was created.
To be valid, a disclaimer must what?
To be valid a disclaimer must be in a writing identified as a disclaimer, describe the interest or power being disclaimed, be signed witnessed and acknowledged, and be delivered.
Disclaimers of real property must be what?
Disclaimers of real property must be recorded.
To be a qualified disclaimer for federal fight tax purposes, the disclaimer must be what?
Made within nine months after the decedent’s death or the beneficiary’s 21st birthday.
Does the right to disclaim exist irrespective of any spendthrift provision or similar restriction?
The right to disclaim exists irrespective of any spendthrift provision or similar restriction.
A surviving joint tenant or tenant by the entirety may disclaim any interest passing to her by what?
Passing to her by right of survivorship.
A disclaimer of an interest in real property held as tenants by the entrust does not cause the disclaimed interest to be what property?
Does not cause the disclaimed interest to be homestead property for purposes of descent and distribution.
The natural guardian of a minor child may disclaim an interest that, but for the disclaimer, would have what, but only when?
That, but for the disclaimer, would have passed to the minor as the result of another disclaimer, but only if the disclaimed interest does not pass to or for the benefit of the natural guardian as a result of the disclaimer.
Why is a disclaimer valid against creditors of the disclaimant?
Because creditors of the disclaimant never owned the property.
A disclaimer cannot be used to defeat what?
A disclaimer cannot be used to defeat a federal tax lien.
When is the right to disclaim barred?
The right to disclaim is barred if the beneficiary gives a written waiver of the right to disclaim, accepts the property or any of its benefits, voluntarily assigns transfers or encumbers the interest (or contracts to do so) or the property is sold pursuant to judicial process, or the beneficiary is insolvent.
Intentional bigamous conduct does what?
Bars the bigamous spouse from inheriting the other’s estate.
A person who wrongfully participates in the killing of another may not what as a result of the death? The property passes as what?
May not receive any benefits as a result of the death. The property passes as if the killer had predeceased the victim.
Under the Slayer Statute, joint tenancies and tenancies by the entire are severed and treated as if what?
As if they were tenancies in common so the killer neither forfeits his fractional interest int he property not receivers the victim’s fractional interest.
What is the evidentiary standard used in determining whether a person killed a victim?
Greater weight of the evidence; a conviction is not required.
What is an advancement?
An advancement is a gift made to a next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor’s estate.
At common law, a substantial lifetime gift to next of kin was presumed to be what?
Presumed to be an advancement.
In Florida, no gift is considered an advancement unless what?
Unless this intention is declared in a contemporaneous writing by the decedent or acknowledged in writing as such by the heir.
If found to be an advancement, the gift’s value when given is what?
Added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
Does an heir need to return the amount of an advancement in excessive of the value of her intestate share?
An heir does not need to return the amount of an advancement in excessive of the value of her intestate share.
In Florida, an advancement is not binding on a predeceased heir’s successors unless
Unless the writing or acknowledgment specifically provides otherwise.
A testamentary gift may be satisfied in whole or in part by what and if what?
An intervivos transfer from the testator to the beneficiary subsequent to the execution of the will if the testator intends the transfer to have that effect. provides for satisfaction in the will or a contemporaneous writing or the devisee acknowledges, in writing, the gift as one in satisfaction.
A writing is not required if the testator gives specifically described property to the beneficiary; in this case there is both what?
There is both a satisfaction of the legacy and an ademption.
In Florida, the doctrine does not apply unless the testator what?
Provides for satisfaction in the will or a contemporaneous writing or the devisee acknowledges, in writing, the gift as one in satisfaction.
A will is an instrument executed with certain formalities that is testamentary in character, and
Revocable during the maker’s lifetime, and operative at the testator’s death.
A codicil is a supplement to what?
A will that modifies the will.
A beneficiary has merely an expectancy and not property interest until the testator’s death because
A will is not pertain until the testator’s death.
The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given what?
They are not given effect as wills.
Parol evidence is admissible to show what?
That an instrument was not meant to have any effect; that it was a sham will.
A conditional will is one that provides what?
Provides that it is to be operative only if a sated condition is satisfied.
A court might interpret a condition as merely what?
Expressing motive for making the will and might give the will effect even if the condition does not occur.
The testator must be what?
Of sound mind at the time she makes a will.
In Florida, a will must be signed where?
At the end in time b the testator in the presence of two witnesses, who must sign in th testator’s presence and in the presence of each other.
Any mark affixed by the testator with the intent that it operate as her signature does what?
Satisfies the signature requirement.
The testator’s signature may be made by another person under what conditions?
At the testator’s direction and in his presence.
If the proxy signer signs his own name as well as the testator’s,
he may be counted as n attesting witness.
The order of signing is what?
Not crucial as long as the signing is done as part of single contemporaneous transaction.
In most states, a will is valid if signed where?
Anywhere on the instrument, not just at the end.
In Florida a will must be signed ______.
At the end in a time sense.
A minority of jurisdictions require the signing parties to be within each other’s scope of vision but the majority use the more liberal what test?
More liberal conscious presence test.
The Florida Supreme Court has not ruled on the scope of vision vs. conscious presence test but lower courts what?
Seem to follow the scope of vision test.
Florida does not require a will to be what?
Published.
Published means what?
Identified to the witnesses as being a will.
