FL Wills

Question 1

FL

Lineal Heir

Answer 1

A person that stems from one another in a generational line that includes the decedent.

Question 2

FL

Lineal Ascendant (up)

Answer 2

Father, Mother, Grandparents, etc.

Question 3

FL

Lineal Descendant (down)

Answer 3

Children, Grandchildren, etc.

Question 4

FL

Collateral Heir

Answer 4

A person that stems not from one another, but from a common ancestor do not stem from you but stem from a common ancestor.

ex. Brothers, sisters, uncles, and aunts, etc.

Question 5

FL

Per Stirpes Distribution

Answer 5

Each branch gets equal shares.

Question 6

FL

Spouse’s Share

Answer 6

When the Spouse Gets it All
1) If there are no decedents of the decedent, the entire estate passes to spouse.
2) If there are descendants of the decedent, and are all descendants of the surviving spouse, and the spouse has no other descendants, the entire estate passes to the spouse.

When the Spouse Gets Half
1) If the decedent is survived by one or more descendants, any of which are not descendants of the spouse, the spouse takes ½ of the estate.
2) If the decedent is survived descendants, all of whom are also descendants of the spouse, but the spouse has descendants that re not descendants of the decedent, the spouse gets ½ of the estate.

Question 7

FL

Intestate Share of Other (Non-Spouse) Heir

Answer 7

The portion of the estate that does not pass to the spouse, descends in the following order:
1) To the decedent’s descendants per stirpes.
2) If no descendants, then to the parents in equal shares.
- If there’s only 1 surviving parents – then that parent gets the entire estate.
3) If there are no descendants or living parent, then to brothers and sisters per stirpes.
4) If there are no descendants, living parents, brothers/sisters, or descendants of brother/sister then the estate is divided into two and passes to grandparents and their descendants.
- If none of the above – it escheats to the State of Florida!

Question 8

FL

Adopted Children

Answer 8

An adopted child is treated the same as a natural born child.

They are entitled to inherit from the adoptive parents just like a natural child.

Question 9

FL

Half bloods

Answer 9

An adopted child cannot inherit from their natural parents - that relationship is cut off.

When intestate property descends to collateral heirs (like brother or sisters) the collateral heirs, if half-bloods, will only take half as much as the whole blood.

Question 10

FL

Uniform Simultaneous Death Act (USDA)

Answer 10

The property passes as though the heir/beneficiary predeceased the decedent.

The USDA applies to all distribution of property irrespective of the means of transfer -it can be via will, intestacy, joint tenancy with right of survivorship, a life insurance contract, etc.

Question 11

FL

Time to Survive

Answer 11

In FL, the person needs to only survive by a microsecond to avoid applying USDA.

Question 12

FL

USDA: Applicability to Joint Tenancies

Answer 12

If the owners die in a manner that USDA applies, the interest of each are divided equally and administered as a tenancy in common.

There is no evidence about the order of death, so the survivorship provision can’t be applied. It is treated as a tenancy in common with the other owners being predeceased.

Question 13

FL

Slayer Statute

Answer 13

The estate passes as though the killer had predeceased the decedent.

Lineal descendants of the killer are not prohibited from taking under this statute.
Ex. Son murders dad. Son cannot inherit under slayer statute, but son’s son can inherit.

Mistakes don’t apply, and neither does self-defense.

You do not need a murder conviction – a conviction for murder is conclusive proof but without it you just need to prove by the greater weight of the evidence.

Question 14

FL

Disclaimer of Interests

Answer 14

A disclaimer is when a beneficiary of a decedent’s property does not wish to receive the property – this is usually done for tax purposes.

Must be in writing.

No formal time limits in FL for disclaiming – but right to disclaim can be waived by accepting or using the property.

For federal gift tax purposes, there must be a disclaimer within 9 months of the decedents death.

Question 15

FL

Advancement of Share

Answer 15

An advancement is a gift made to a next of kin with the intent that the gift is an advance of property to be received from the decedent’s estate.

In FL, no gift can be considered an advance unless there is a writing made by the decedent contemporaneous with the gift declaring such an intention, or an acknowledge in writing by the heirs that the gift is an advancement.

The advancement is valued as of the date of the gift.

Question 16

FL

Wills: definition

Answer 16

A will is a legal instrument that is:
1) Executed with certain formalities and
2) Testamentary in nature and
3) Revocable during the lifetime of the maker and
4) Operative only upon the testator’s death.

Question 17

FL

Codicil

Answer 17

A codicil is a supplement to a will. It alters, amends, or modifies a will.

A codicil has the same formalities as required by a will.

Question 18

FL

Intent

Answer 18

In order for a will to be valid – the testator must have intended that the instrument to be his/her will.

Question 19

FL

Testamentary Capacity

Answer 19

Testator must be:
1) 18 years of age or
2) Emancipated minor at the time the will is created.

Testator must be sound mind at the time of making the will:
1) Must understand the nature and extent of their property and understand what they have.
2) Must understand the persons who are the natural objects of her bounty and understand who will get it.
3) Must understand the nature of the disposition – a general understanding of the practical effects of the will.

Question 20

FL

Formal Requirement for Will

Answer 20

There are 6 requirements for a formal execution of a will:
1) The will must be signed by the testator or by another person at the testator’s direction and in the testator’s presence and
- Any mark that is affixed by the testator – with the intent to make that mark – operates as the testators signature.
- The signature requirement can also be satisfied by another person at the direction of the testator.

2) The testator must sign at the end of the will and
- “time and not place” – must be signed when nothing else is going to be added – like the will is finished.
- Anything added after the signature is not valid – unless codicil.

3) The testator must sign or acknowledge the previous signature in the presence of the witness and

4) There must be at least 2 witnesses and

5) The witnesses must sign in the testator’s presence and
- Scope of vision tests – the person must be in close proximity to the other that they saw/could have seen the signature if they looked for it.
- Ex. Had backs turned to the testator – still in scope of vision bc if they wanted to, they would have seen it.

6) The witnesses must sign in the presence of each other.
- Interested witnesses are still valid.
- No minimum age requirement to be a witness – but need to understand that the document that is being signed is a will.

Question 21

FL

Self-Proof Affidavi

Answer 21

A self-proof affidavit permits the will to be self-proving and thus will not require the testimony of the witnesses in court.

In order to self-prove the will, the testator and the witnesses must sign the will and then sign the sworn affidavit before a notary public reciting that the testator declared this to be his/her will and that the signature formalities were followed.

Does not have to happen when the will is being executed – but should do it at the same time.

The signature on the affidavit can count as the required signatures on the will.

Question 22

FL

Holographic & Oral Wills – Validity of Foreign Wills

Answer 22

Oral wills are not permitted in FL.

Holographic will is not permitted in FL.

Wills executed by non-FL residents are valid as long as it is valid in the other state. Except for oral and holographic!!!!

Question 23

FL

Revocation of Wills

Answer 23

In order to revoke a will, a testator must have testamentary capacity (is of sound mind, appreciate the nature of the act, etc.)

Question 24

FL

Ways to revoke a will

Answer 24

Revocation by Operation of Law
The law changes the will automatically. This happens when someone gets married, divorced, child is born, child is adopted.

Marriage: if a person marries after the execution of a will, and the spouse shares the testator, the new spouse is “pretermitted” and takes an intestate share of the testator’s estate.

Divorce/Annulment: a divorce or annulment revokes all provisions in a will in favor of the former spouse. For administration purposes – the spouse is treated as having predeceased the testator.

Children: a child born or adopted after the execution of the will is “pretermitted” and is entitled to a share of the estate equal in value what he could have received if the testator died intestate.

Can be partial/full revocation.

Revocation by Subsequent Instrument
This written instrument can be a will, a codicil, or any other written instrument as long as the will formalities are followed.

A subsequent will that does not explicitly revoke an earlier will may implicitly revoke the earlier will, or part of the earlier will, if it contains inconsistent provisions.

Can be partial/full revocation - Latest in time prevails.

Revocation by Physical Act
Will/codicil can be revoked by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent and purpose to revoking.

No partial revocation – only FULL.

Question 25

FL

Residual Estate

Answer 25

Residual estate is all property that was devised by will.

Residual can be devised – if not devised it passes through intestacy rules.

Question 26

FL

Lapse

Answer 26

A gift to a beneficiary lapse if the beneficiary dies during the testators lifetime. You can’t gift a dead person.

Question 27

FL

Anti-Lapse

Answer 27

FL has an anti-lapse statute that is meant to protect certain types of gifts.

The anti-lapse statute provides that a gift to a predeceased beneficiary will not lapse but will instead to go the beneficiary’s surviving descendants per stirpes if:
1) The beneficiary is a grandparent or a descendant or a grandparent of the testator and
2) The beneficiary is dead when the will is executed, fails to survive the testator, or is required to be treated as predeceased by operation of law.

A testator can opt out of the anti-lapse statute by a clear intention in the will.

Question 28

FL

Ademption

Answer 28

Ademption refers to what happens when a specifically bequeathed property is not in the testators estate during death.

Ademption Applies to Specific Devises Only!!!

If the property specified by the specific devise is not in the estate the time of the decedent’s death, the gift adeems and nothing goes to the beneficiary as part of that devise.

Ademption does not apply to general or demonstrative devises.

Question 29

FL

Types of ademption

Answer 29

1) Specific Devise
A devise that is to be satisfied only by the specific/particular property described in the devise.
Ex. T owns a car. T devises car to J. The devise of the car to J is specific and can only be satisfied with that car.

2) General Devise
A devise of a specific dollar amount that is payable out of the general assets of the estate.
Ex. T devises $50, assume the estate does not have $50 in cash, the representative can sell assets to come up with the $50 or can give the assets to J in the value of $50.

3) Demonstrative Devise
Specific dollar amount that is payable from a particular asset.

Question 30

FL

Family Allowance

Answer 30

FL authorizes a payment to a spouse or minor children in order to support the spouse or minor children during the period in which assets are tied up in the probate administration procedure.

Maximum amount: $18,000.

Question 31

FL

Exempt Property

Answer 31

In addition to homestead and family allowance rights, a surviving spouse of a decedent who was domiciled in FL at the time of his/her death is entitled to several items of tangible personal property.

If there is no surviving spouse, these items are set aside for any of the decedent’s minor children.

These items are exempt from all claims against the estate except for perfected security interests on the property.
- Valid liens.
- If the exempt property is devised in the will, it is not subject to these protections.
- Usually seen with homestead and family allowances.

Exempt property includes:
1) Household furnishing up to $20,000.
2) Personal Motor Vehicle:
- No limit to amount but up to 2 vehicles.
- Less than 15,000 pounds
- Title is in the name of the decedent and regularly used by the decedent or members of the family as personal vehicles.
3) Pre-Paid College Programs

Question 32

FL

Spousal Elective Share

Answer 32

The spousal elective share permits the spouse to take 30% of the elective estate.

The elective estate includes the decedent’s probate estate (but not homestead):
1. payable on the death accounts
2. decedent’s fractional interest in property is help as Joint Tenants with Rights of Survivorship or Tenancy by the Entirety
3. Net cash surrender value of the decedent’s life insurance policy
4. Property transferred during the one-year period preceding the decedents death.

Question 33

FL

Homestead Property

Answer 33

Ability to devise homestead property may be limited depending on whether the decedent is survived by a spouse or minor child.

If the homestead is improperly devises or not devises, it descends in the same manner as other intestate property with the following exceptions:
If the decedent is survived by a spouse or one or more decedent:
- the surviving spouse takes a life estate and
- the descendants take a vested remainder.

Question 34

FL

Probate – Jurisdiction and Admitting Will to Probate

Answer 34

In FL, circuit courts have exclusive jurisdiction over the settlement of a decedent’s estate.

If a will is not self-proved by way of affidavit, it must be proven before it can be admitted to probate.
1) This is done by way of the witnesses to the will providing a sworn oath from one of the witnesses to the will.

Question 35

FL

Personal Representatives: Appointment

Answer 35

Responsible for marshalling the decedent’s assets, giving notice to creditors, paying valid claims, filing the decedent’s final income tax and estate tax returns.

In charge of distributing assets.

Question 36

FL

Personal Representatives: Entitled to be a Personal Representative

Answer 36

In a testate estate, in the following order:
1) Person nominated in the will or
2) Person selected by a majority interest of the persons entitled to the estate or
3) A devisee under the will.

In an intestate estate, in the following order:
1) The surviving spouse or
2) The person selected by a majority in interest of the heirs or
3) The heirs nearest in degree of kinship to the decedent.

Question 37

FL

Personal Representatives: Qualifications

Answer 37

1) Must be a resident of FL and
2) Must be 18 years of age or older and
3) Must have mental capacity and
4) Must never have been convicted of a felony and
5) Can be a FL or Federal Bank, savings and loan, or other trust company authorized to exercise fiduciary duties may also serve as a personal representative.

Entitled to reasonable compensation – a provision limited the amount paid to a personal representative is not binding unless it was made pursuant to a contract between the decedent and the personal representative.

Question 38

FL

Creditor Claims

Answer 38

Creditors must file claims in order to be paid from the estate.

The personal representative must promptly file a Notice to Creditors once a week for two consecutive weeks in a newspaper published in the county of administration.

Personal service of the Notice of Administration: is required to known and reasonably ascertainable creditors.

Creditors must file their claims no later than 3 months after publication of the Notice or 30 days after service of the Notice of Administration.

Question 39

FL

Creditor payment in the following order

Answer 39

1) Costs, expenses of administration, compensation of personal representatives, and their attorneys, and attorney’s fees awarded from the estate.
2) Reasonable funeral, interment, and grave market expenses not to exceed $6,000.
3) Debt and taxes with preference under federal law, Medicaid claims and claims in favor of the state for unpaid court costs, fees, or fines.
4) Reasonable and necessary medical and hospital expense of the last 60 days of the last illness of the decedent.
5) Family allowances.
6) Past due court ordered child support.
7) Debt acquired after death by the continuation of the decedent’s business.
8) All other claims.

Question 40

FL

Abatement

Answer 40

Only after all creditor claims have been paid can the estate be distributed.

Creditors get paid first from the intestate property of the estate.

If there is not enough in that estate, then creditors are paid from the
1. residuary
2. general devises
3. specific
4. demonstrative