FL wills

Question 1

Surviving spouses share in intestacy

Answer 1

If descendent dies with:
1. Spouse but no kids –> 100% to SS
2. Spouse and kids –> 100% to SS
3. Spouse and kids + SS own kids –> 1/2 to SS (other 1/2 to kids)
4. Spouse and your own kids –> 1/2 to SS (other 1/2 to kids)

Question 2

Share of other heirs after the SS or if there is no SS

Answer 2

FIRST: Kids, grandkids, great grandkids
SECOND: Parents equally or to the survivor of them
THIRD: Collateral heirs and their kids
FOURTH: if 1-3 don’t exist, to grandparents– if not, then aunts and uncles– if not, then to all others who survived

Question 3

Inheritance per stirpes

Answer 3

• Start with the kids
• Divide into equal shares for each child on the first line who is alive and has kids and/or is dead and has kids
• If there is a child that is dead and has no kids = treat them like they don’t exist and don’t include them in the calculation

Question 4

Escheat

Answer 4

when a person dies intestate and there’s no one surviving to take from the estate, it “escheats” to the state

Question 5

Half bloods

Answer 5

inherit HALF the amount of a full blood sibling (only applies when you are inheriting from your siblings)

Question 6

collateral heirs

Answer 6

brothers and sisters (siblings)

Question 7

afterborn heirs (heirs conceived before decedent died but born after they died)

Answer 7

treated as if they were already born when the decedent died

Question 8

adopted persons

Answer 8

are treated like a natural child and inherit from the parent under intestacy per stirpes
(adopted child does NOT inherit from their birth parent)

Question 9

if a person is adopted AFTER their birth parent died,

Answer 9

then they can inherit from their birth parent by intestacy

Question 10

children born out of wedlock can inherit from their natural father if:

Answer 10

1. parents were married and had the kid but the marriage is actually void
2. paternity of father is established before or after death
3. father acknowledges in writing he is the father

Question 11

SS elective share percentage

Answer 11

entitled to 30% of elective share

Question 12

SS must file election for elective share

Answer 12

6 months after notice that state is being probated
OR
2 years after the date of death

Question 13

pretermitted spouse

Answer 13

entitled to recover from intestate estate UNLESS
1. SS signed a prenup or postnup waiving those rights
2. SS is provided for in the will
3. Will expressly states no intention that SS get anything

Question 14

Pretermitted children

Answer 14

Child takes the share they would have gotten under intestacy UNLESS the decedent’s estate gives most of the estate to the child’s other parent, then the child gets nothing (bc its presumed your parent is going to take care of you)

Question 15

if homestead is improperly devised

Answer 15

it descends in the same way as other intestate property UNLESS you are survived by a spouse and one or more descendants in which case the SS gets a life estate with remainder to descendants OR the SS can elect to take as 1/2 tenants in common with the descendants

Question 16

to be homestead property it must

Answer 16

NOT be titled in “survivorship” with the spouse (JTROS or TE = not homestead under the FL probate code)

Question 17

restraints on devise of solely owned homestead property

Answer 17

1. If SS or minor child –> homestead cannot be devised
2. If SS but no minor child –> only proper devise is 100% fee simple to SS
3. If no SS and no minor child –> can devise however you want

Question 18

exempt property from probate

Answer 18

1. household furniture, appliances, and furnishings up to $20k in value
2. two motor vehicles
3. all qualified tuition programs/college funds

Question 19

if a will specifically devises exempt property then

Answer 19

we follow the will

Question 20

family allowance

Answer 20

$18,000 (need to petition for it)

Question 21

who can make a will?

Answer 21

any person of sound mind, 18+ or an emancipated minor

Question 22

will formalities

Answer 22

every will must:
1. Testator signature at the end (nothing under the signature!!!)
2. Testator name at the end (or another person @ testator’s direction)
3. Signed by 2 witnesses in front of testator and each other

Question 23

codicil requirements

Answer 23

same as a will
1. Testator signature at the end (nothing under the signature!!!)
2. Testator name at the end (or another person @ testator’s direction)
3. Signed by 2 witnesses in front of testator and each other

Question 24

who can witness a will?

Answer 24

any competent person, even an interested person is ok so long as they are not the sole beneficiary

Question 25

Revocation of a will by physical act

Answer 25

• cannot be partial (if it is partial it does not count & will be disregarded)
• must revoke the executed copy
• can direct another person to do it but you need to be present

Question 26

Revocation by another writing

Answer 26

Subsequent will or codicil will only revoke the inconsistent parts if it doesn’t expressly say it intends to revoke the previous will

Question 27

If you give to your spouse in your will and then get divorced

Answer 27

the devise to your ex-spouse is void and the law treats as if they predeceased you

Question 28

How can you revive a will once its revoked?

Answer 28

only way to revive is to re-execute the will

Question 29

If you revoke a codicil

Answer 29

it does NOT revoke the will – only the codicil

Question 30

If you revoke a will that has a codicil

Answer 30

it revokes both the will and the codicil (bc the codicil came after)

Question 31

Incorporation by reference

Answer 31

can incorporate other documents into the will be referencing them but THEY MUST BE IN EXISTENCE when the WILL IS EXECUTED

Question 32

Separate writing identifying devises of tangible property

Answer 32

Is incorporated by reference, can be changed even after executing the will, only includes tangible personal property (not real property)

Question 33

fraud, duress, mistake, and undue influence

Answer 33

make the will VOID

Question 34

penalty clause for contest

Answer 34

not allowed

Question 35

simultaneous death law

Answer 35

In FL, if there is any evidence that one spouse survived the other by MERE MINUTES, then the property passes to the surviving spouse and then the surviving spouse’s heir unless the will expressly says no (Otherwise = treated as if both spouses predeceased each other)

Question 36

Antilapse statute

Answer 36

only applies if related by blood (applies to half siblings)
if you predecease the testator, your descendants get your gift

Question 37

devises to multigenerational classes

Answer 37

follow per stirpes (so if someone predeceases it goes to their descendants)

Question 38

Reformation to correct mistakes

Answer 38

EE allowed but there must be clear and convincing evidence of testator’s intent to correct a mistake or clear up an ambiguity

Question 39

prenups and postnups must be

Answer 39

• witnessed
• full and fair disclosure if signed after marriage
• fair disclosure if signed before marriage

Question 40

if you remarry the spouse you have previously divorced

Answer 40

a benefit in your will to them will still apply

Question 41

slayer statute

Answer 41

if you killed/caused the death, you don’t inherit from them (treated as if you predeceased) and it goes to your descendants

Question 42

if you are not convicted of the killing then

Answer 42

if the court finds by greater weight of the evidence (51%) that the killing was unlawful or intentional, killer doesn’t inherit

Question 43

costs and attorneys fees

Answer 43

attorney for PR is first to be paid

Question 44

if you are contesting a will, who has the burden?

Answer 44

the proponent of the will must establish prima facie case that the will was properly executed

Question 45

self proving affidavit of a will

Answer 45

is prima facie evidence that a will was properly executed

Question 46

probate of will in a foreign language

Answer 46

needs to be translated to english to be probated

Question 47

a lost or destroyed will is presumed

Answer 47

to be revoked

Question 48

overcoming presumption of lost or revoked will

Answer 48

1. two disinterested witnesses testify as to the specific contents of the will OR
2. one disinterested witness can prove by a correct copy

Question 49

if a creditor is notified by newspaper

Answer 49

they have 90 days to make a claim or 30 days after personally served with notice (whichever is greater)

Question 50

in testate estates, what is the preference for appointing a PR?

Answer 50

1. person named in the will as PR
2. person selected by a majority of the interested people
3. a devisee under the will

Question 51

in intestacy estates, what is the preference for appointing a PR?

Answer 51

1. the surviving spouse
2. person selected by a majority in interest of the heirs
3. the heir nearest in degree (next of kin)

Question 52

who can be a PR?

Answer 52

FL resident at time of death and of sound mind

Question 53

if someone is not a FL resident, they cannot be a PR unless they

Answer 53

1. are a legally adopted child or adoptive parent
2. are related by lineal conseguity (descendants)
3. are a spouse of anyone in #1 and #2

Question 54

who cannot be a PR?

Answer 54

• anyone convicted of a felony
• mentally or physically unable to perform duties
• under the age of 18

Question 55

A PR might be removed if they

Answer 55

• stealing from the estate
• become incapable of performing their duties
• fail to comply with court orders
• are convicted of a felony
• are insolvent
• move somewhere out of FL (unless they are an exception group)
• being fraudulent or misrepresenting

Question 56

PR general powers

Answer 56

• distribute assets
• manage decedents business for up to 4 months
• manage the homestead (pay taxes, mortgage)
• fiduciary duty to the estate

Question 57

PR right to sell property

Answer 57

They have the right to sell property of the estate but title will only pass once the court authorizes/confirms the sale. If the will gives them the power to sell, then the PR doesn’t need authorization of sale from the court

Question 58

Order of payment of expenses

Answer 58

1. PR for costs and PR’s attorney
2. Funeral expenses up to $6k
3. Debts and taxes owed to federal government
4. Reasonable/necessary hospital bills from 60 days before death
5. Family allowance ($18k)
6. Arrearages for court ordered child support
7. Debts incurred from running decedent’s business
8. All other claims against decedent

Question 59

what happens to the PR after administration?

Answer 59

they are discharged and are released/barred from any action against them as surety of the estate

Question 60

once the estate is completely administered and the PR is discharged

Answer 60

the estate will NOT reopen if a later will is discovered but may be reopened is additional estate property is discovered

Question 61

summary administration

Answer 61

FL resident or non-resident testate estate that:
1. does not exceed $75k
2. decedent has been dead for more than 2 years

Question 62

ancillary administration

Answer 62

non-FL resident died with assets in Florida

Question 63

to disclaim an interest must

Answer 63

1. be in writing
2. describe the interest being disclaimed
3. signed, witnessed, and acknowledged
4. delivered

Question 64

self-proving a will

Answer 64

don’t need a notary to make a will valid but a notary will make the will self-proving

Question 65

general devise

Answer 65

bequest of money that is payable out of the general assets of the estate

Question 66

demonstrative devise

Answer 66

bequest that identifies a particular asset as the source of payment
(if that source of payment no longer exists = then gets paid from another source within the estate)

Question 67

specific devises

Answer 67

gift of property that is particularly designated and can ONLY be satisfied by receiving the particular property

Question 68

doctrine of ademption

Answer 68

Only applies to specific devises!!!!!!!
If the specific property is not in the estate at the time of the testator’s death, then the bequest is “Adeemed” it fails and you get nothing

Question 69

Ambiguity in a will

Answer 69

FL allows evidence to cure any ambiguity in a will

Question 70

PR notice to creditors

Answer 70

must give personal notice to “reasonably ascertainable creditors”

Question 70

after notice is given to creditors

Answer 70

PR must file formal notice of petition for probate and serve on interested persons

Question 70

overcoming presumption of lost or revoked will

Answer 70

1. two disinterested witnesses testify as to the specific contents of the will OR
2. one disinterested witness can prove by a correct copy

Question 70

Acts of independent significance

Answer 70

a will can dispose property by reference to acts and events that have some lifetime significance other than providing for the gift

ex: “to whoever is my employee at the time of my death”