Bar Exam Masters

Question 1

How do you analyze dependent relative revocation issues?

Answer 1

Pay attention to the testator’s intent and the result of three different things:

1. what the testator mistakenly believed would happen (the intended result);
2. What will happen if the revoked will is probated (the potential next-best alternative);
3. and what would happen under intestate succession (the default unless the requirements are satisfied.

Question 2

What is the effect of the slayer statute?

Answer 2

When someone intentionally kills the decedent, that person is not entitled to receive any benefit which they might have otherwise received from the decedent’s will, intestacy, or otherwise.

Question 3

May pretermitted rights be waived?

Answer 3

Yes, in a prenuptial or postnuptial agreement.

Question 4

To whom does the presence requirement apply?

Answer 4

Witnesses must sign in the presence of one another, and the testator must sign in the presence of the witnesses.

Question 5

What effect does divorce have on a will?

Answer 5

When a final decree of divorce is entered, provisions in favor of the former spouse are revoked, and it is construed as if the former spouse predeceased the testator.

Question 6

How do lost or destroyed wills get probated?

Answer 6

The oath of any one attesting witness may prove due execution, and the contents must be “clearly and distinctly proved by the testimony of at least two disinterested persons.”

• If there is a carbon or photo copy, then that can serve as one of the two witnesses

Question 7

When a duly executed will (Will 2) expressly revokes a former duly executed will (Will 1), and then Will 2 is revoked by physical act, what results?

Answer 7

Will 1 is not revived. Will 2 may be probated despite the revocation if DRR applies.

Question 8

What happens when a decedent dies without any of the family under intestate succession?

Answer 8

The estate escheats to the state of Florida.

Question 9

May the testator expressly waive the rule against giving testamentary gifts to unrelated lawyers?

Answer 9

No, the statutory rule cannot be waived, and such a provision is unenforceable.

Question 10

What types of acts are sufficient for physical act revocation?

Answer 10

By statute, Florida recognizes the acts of “deleting, canceling, rendering unreadable, or obliterating.”

Question 11

What happens to exempt property if the decedent is not survived by a spouse or children?

Answer 11

No exempt personal property is available, and such property can be reached by creditors.

Question 12

What types of trust property are included in the elective estate?

Answer 12

Property in revocable trusts created by decedent and property in irrevocable trusts created by decedent if the trustee has discretion to distribute to the decedent.

Question 13

To be considered an elective share trust, for how long must the spouse have a right to receive income?

Answer 13

For life.

Question 14

What happens when the testator is incompetent and his or her guardian sells specifically devised property and keeps the proceeds?

Answer 14

The specific devisee is entitled to any remaining specifically devised property and any balance of the purchase price if unpaid upon the testator’s death.

Question 15

When may property be disposed of without administration?

Answer 15

When the decedent had no real property and all other property is either necessary for death-related expenses or medical bills, or it is exempt from creditors’ claims.

Question 16

What is the effect of the Uniform Simultaneous Death Act?

Answer 16

Absent a provision to the contrary, if there is no evidence as to which person died first, treat each person as though he or she survived the other.

Question 17

How is probate dealt with for missing people?

Answer 17

The death of the missing person presumably occurs at the end of the five years. In some circumstances, probate may occur before the end of 5 years.

Question 18

What is the effect of a self-proving will?

Answer 18

The formalities of execution are conclusively presumed.

Question 19

What is the effect of writing “void” on an executed will?

Answer 19

The word “void” must touch some of the contents of the will. Thus, if it is written on the bottom apart from any language, it will not be an effective physical act revocation. However, if it is written across the front of the page (i.e. across the language of the will), then it is an effective physical act revocation.

Question 20

What is the effect of crossing through a provision of the will and replacing it with a new modification?

Answer 20

The alleged modification is ineffective unless the will is re-executed or republished by codicil.

• Note: the will is not revoked by physical act because there was no intent to revoke the whole will, and will cannot be partially revoked by physical act.

Question 21

Are minors and incompetent people able to disclaim their interests?

Answer 21

Yes, through a guardian.

Question 22

When there is no will, who has first priority to be personal representative?

Answer 22

The surviving spouse.

Question 23

When a will is distroyed but not effectively revoked by physical act, what happens?

Answer 23

The lost wills statute applies, and it is probated anyways.

Question 24

What is a pretermitted spouse entitled to?

Answer 24

An intestate share.

Question 25

If no notice is published, within what time-frame must creditors file?

Answer 25

Within 2 years of the decedent’s death

Question 26

What is the effect of revocation of a will when there was a codicil thereto?

Answer 26

Revocation of the will revokes the codicil.

Question 27

What types of gifts does the elective estate include?

Answer 27

Gifts of more than $15,000 per donee by the decedent within the year preceding his or her death.

Question 28

What happens when the testator otherwise disposes of the subject of a specific bequest before his or her death?

Answer 28

The gift is adeemed, and the beneficiary of the specific bequest does not receive it or its monetary equivalent.

Question 29

What is the result if a gift is made of “100 shares of Apple, Inc. stock to Hannah” and the testator sells all of his or her stock before dying?

Answer 29

The personal representative will buy 100 new shares of Apple, Inc. stock to satisfy the bequest, because this was not a specific bequest (if it had said 100 of MY apple shares, it would be specific).

Question 30

Under antilapse, when the predeceasing relative has more than one child, who gets the gift?

Answer 30

The children share it per stirpes.

Question 31

In general, when a testamentary gift fails for any reason, what happens?

Answer 31

It results back into the residuary clause, if any.

Question 32

What is the effect of a clause in a will indicating that a person who contests the will forfeits his or her gift under it?

Answer 32

Such clauses are void.

Question 33

When may acts of independent significance bear on the meaning of a will after execution?

Answer 33

When the acts have an independent lifetime motive besides their primary motive being to change the meaning of the will.

Question 34

When a domiciliary of another jurisdiction executes a will under the laws of his or her jurisdiction, may it later be administered in Florida?

Answer 34

Yes, it will be given effect if compliant with the other jurisdiction’s requirements unless it is a holographic will.

Question 35

What must a guardian or holder of a durable power of attorney show to elect on behalf of an incompetent spouse?

Answer 35

That election is in the spouse’s best interest.

Question 36

If a decedent dies intestate, survived by a spouse and one or more descendants, and at least one of those descendants is not also a descendant of the surviving spouse, how is the estate distributed?

Answer 36

The surviving spouse gets half, and the decedent’s descendants get the rest per stirpes.