FL Wills Flashcards
Who is qualified to be a personal representative in Florida?
(1) 18 or older; (2) mental capacity; (3) has never been convicted of a felony; and (4) is a FL resident
When can a non Florida resident serve as a personal representative?
(1) are qualified to serve; (2) a grandparent or descendant of grandparent of decedent; (3) adoptive child/ parent; (4) decedent’s spouse or person related by lineal consanguinity to decedent’s spouse; or (5) spouse of any of the above
when is the right to disclaim barred?
If any of the following occur before disclaimer becomes effective: (1) beni accepts property; (2) beni voluntarily assigns, transfers, or encumbers the interests; (3) property is sold per judicial process; or (4) beni is insolvent
What is the result of a disclaimer?
Property passes as disclaimant predeceasing the decedent
To be valid a disclaimer must:
(1) be in writing; (2) Identified as a disclaimer; (3) describe interest or power disclaimed; (4) be signed, witnessed, and acknowledged; and (5) be delivered
Ambiguity in Wills:
- Patent Ambiguity: provision is ambiguous on its face
- Latent Ambiguity: language is clear on its face but can’t be carried out without further clarification
- evidence that will provision is result of mistake is always admissible and if proven results in reformation
What is the standard of proof for mistake in a will?
Mistake must be proven by clear and convincing evidence
Where a will has been executed in duplicates (both signed and witnessed)…
an act of revocation performed upon either copy revokes the will
Posthumous children:
heirs of decedent conceived before decedent’s death, but born after the death inherit intestate property as if they were born during the decedent’s life
When does the Florida anti-lapse statute work?
predeceasing beni is (1) testator’s grandparent; or (2) lineal descendant of testator’s grandparent who leave issue
What are the classifications of testamentary gifts:
(1) Specific: gift of a particular item/ property
(2) General: gift payable out of general assets from the estate
(3) Demonstrative: gift of a general amount that is to be paid from a particular source
What is the residuary estate made up of?
balance after paying debts, expenses, and taxes; and specific, general, and demonstrative gifts
What is the general rule for construing bequests of securities (stocks)?
If the provision reads: “I bequeath my 100 shares” it is specific; if the provision reads: “I bequeath 100 shares”, it is general
What does homestead property consist of?
(1) outside of a municipality 160 acres of continuous land; or
(2) In a municipality up to 1/2 an acre; and
(3) up to $1000 of personal property
What is the restraint on devise of homestead?
(1) Cannot devise if survived by a spouse and minor children;
(2) if no minor children, testator can only devise the homestead to his/her spouse in Fee simple absolute;
(3) no spouse + no minor children= can freely devise
What is included in the elective estate?
Probate estate and non probate assets including real and person property of the decedent wherever located and the net cash surrender value of the decedent’s life insurance policy
Slayer statute:
- Under FL law a person who unlawfully and intentionally kills or procures the death of another for inheritance purposes cannot receive benefits through will or intestacy
- Conviction of decedent’s murder is conclusive evidence
- Even if acquitted, the probate court may determine by the greater weight of the evidence that the killing was unlawful/ intentional
What is an advancement?
A gift made to next of kin with the intent that it be applied to an inheritance the next of kin receives from the decedent’s estate
When is a gift considered a valid advancement?
(1) the intent to treat the gift as an advancement is declared in a contemporaneous writing by the decedent; or (2) acknowledged by the person receiving the gift in a writing
how is advancement calculated
Decedent’s estate + value of advancement =X
Distribute X and then subtract the advancement value from the beneficiaries amount
What is an insane delusion?
form of incapacity where the testator spontaneously conceives as fact something with no truth, deriving from the testator’s imagination
What is Florida’s rule regarding insane delusions?
If a testator experienced an insane delusion during will execution, testator lacked testamentary capacity
Doctrine of Dependent Relative Revocation:
- Equitable doctrine imposed by court
- The court will ignore a revocation if it determines the decedent made the revocation under a mistaken belief that but for the decedent’s belief that another disposition of her assets was valid
(i.e. T executes Will 1, then executes Will 2 and revokes Will 1; T then revokes Will 2 because T mistakenly believes her property will pass under Will 1)
In what order are creditors of an insolvent estate paid?
- (1) attorney’s fees and PR fees
- (2) funeral expenses no more than 6k
- (3) debts, taxes, medicaid claims;
- (4) medical expenses of the last 60 days for the decedent’s last illness;
- (5) family allowance;
- (6) child support
- (7) debt acquired via continuing decedent’s business; and
- (8) all other claims
Are liens on specifically devised property exonerated?
No, unless the will specifically directs for exoneration of the lien
Are insurance proceeds probate assets?
- No, insurance proceeds cannot be gifted via will
- insurance proceeds are payable to the beneficiary designated under the contract between the insured and the insurance provider
When must election be filed to take elective share?
earlier of six months after service of a copy of notice of administration on the surviving spouse; or tow years after the decedent’s death
Can rights of a spouse be waived?
Yes, either before or after marriage
- can waive right of election; intestate succession; preference in appointment as PR; homestead exemption; family allowance; or pretermitted spouse rights
- if the waiver is made after marriage each spouse must make fair financial disclosures
By when must a creditor with notice file its claim against the estate?
- before the later of (1) 3 months after first publication of notice; or (2) 30 days after date of service of the notice
- unknown creditors must file their claims within 3 months of first publication of notice
An attestation clause in a will:
creates the presumption that the will complies with Florida execution formalities; the presumption may be rebutted by contradicting testimony from a witness to the will
What is the preference of appointment for PR when a person leaves a will?
(1) person nominated in the will; (2) person selected by majority in interest of the persons entitled to the estate; and (3) devisee under the will
Can trust companies (i.e. Florida and federal banks) serve as PR?
Yes, if they are authorized to exercise fiduciary powers
Can beneficiaries of a will bring an action for negligence in preparation of the will against the attorney who drafted the will?
Yes, the attorney owes a duty to the client who contracted him to draft the will and to the beneficiaries named in the will
What is required for a disclaimer in interest to be valid?
(1) in writing; (2) signed, witnessed, and acknowledged in the manner provided for the conveyance of real property; and (3) filed with the clerk of court
a filed disclaimed is effective on the date of filing and is irrevocable
What must be shown to establish undue influence?
(1) influence was exerted on testator; (2) effect of the influence was to overpower testator’s free agency; and (3) but for the undue influence a will would not have been executed
When a will is ambiguous on its face:
extrinsic evidence is admissible to establish the testator’s intent
Is an advancement of a gift to a predeceased her binding on the predeceased hears successors?
No unless the writing acknowledging the assignment specifically provides otherwise
In what order do devises abate (absent a contrary will provision)?
(1) property passing through intestacy; (2) residuary; (3) general devise; (4) property not specifically or demonstratively devised; and (5) specific and demonstrative gifts
Does a specific devisee have rights to proceeds from fire or casualty insurance proceeds on property?
Yes, but only to the extent that the insurance proceeds are unpaid at testator’s death
What is the consequence of including a dispositive provision under the testator’s signature on the will?
The whole will is invalid - Cannot probate the will
When there are joint co-personal representatives, what is required before they take action?
consent to the action by a majority
what is the order of payment in insolvent estates?
(1) Costs for administration, PR fees, attorney fees; (2) funeral expenses; (3) taxes; (4) medical bills for last 60 days of decedent’s last illness; (5) family allowance; (6) child support arrears; (7) debts acquired post death in continuing decedent’s business; (8) all others
Does a the physical destruction of an unexecuted copy of a will revoke the will?
NO- but physical destruction of an executed duplicate of the will does.
When a decedent is survived by a spouse and lineal descendants who gets the homestead?
Spouse gets a life estate, with VR in the lineal descendants PR cam elect to take an undivided 1/2 interest as TIC with the lineal descendants
When anti lapse does not apply what is the result?
The gift lapses and goes to the residuary estate
When will the court reform a will to reflect the testator’s intent?
If an interested party can prove by clear and convincing evidence that a will provision was based on mistake of law or fact - even if the language is unambiguous
What is the evidentiary standard for admitting a lost or destroyed will into probate?
the content of the will must be proven by clear and convincing evidence by the testimony or two disinterested witnesses OR if there is a carbon copy of the will, by one disinterested witness
An interested party served with notice of administration has how long to make any objection to administration?
on or before the date that is three months after the date of service of the notice of administration
What is the acts of independent significance doctrine?
A will may dispose of property by reference to acts that have some lifetime meaning other than providing for the testamentary gift (i.e. $500k to whoever is under my employment at the time of my death)
What are the three requirements to incorporate a will by reference?
(1) document is in existence at the time the will is executed; (2) will sufficiently describes the document; and (3) will manifests an intent to incorporate the document
Can the right to elective share be waived?
Yes, by any written agreement signed by the waiving party in the presence of two witnesses; if the agreement is executed after marriage full disclosure is required but no disclosure is needed if the waiver is made before marriage
What is the rule under Florida’s pretermitted child statute?
If T fails to provide for a child born or adopted after will execution the child is entitled to a share of the estate equal to a value of their intestate share
What is a contractual will?
A will that promises not to make a will, to give a devise, not to revoke a will, not to revoke a devise, or not to make a devise
Are contractual wills valid?
Yes, if it is in writing and signed by the agreeing party in the presence of two witnesses
What is the effect of revoking a contractual will with a subsequent will?
a constructive trust will be imposed in favor of the beneficiaries under the contractual will
When is a pretermitted child NOT entitled to a share?
if the omission was intentional or if the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the omitted child
