FL wills Flashcards
Surviving spouses share in intestacy
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)
Share of other heirs after the SS or if there is no SS
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
Inheritance per stirpes
- 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
Escheat
when a person dies intestate and there’s no one surviving to take from the estate, it “escheats” to the state
Half bloods
inherit HALF the amount of a full blood sibling (only applies when you are inheriting from your siblings)
collateral heirs
brothers and sisters (siblings)
afterborn heirs (heirs conceived before decedent died but born after they died)
treated as if they were already born when the decedent died
adopted persons
are treated like a natural child and inherit from the parent under intestacy per stirpes
(adopted child does NOT inherit from their birth parent)
if a person is adopted AFTER their birth parent died,
then they can inherit from their birth parent by intestacy
children born out of wedlock can inherit from their natural father if:
- parents were married and had the kid but the marriage is actually void
- paternity of father is established before or after death
- father acknowledges in writing he is the father
SS elective share percentage
entitled to 30% of elective share
SS must file election for elective share
6 months after notice that state is being probated
OR
2 years after the date of death
pretermitted spouse
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
Pretermitted children
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)
if homestead is improperly devised
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
to be homestead property it must
NOT be titled in “survivorship” with the spouse (JTROS or TE = not homestead under the FL probate code)
restraints on devise of solely owned homestead property
- If SS or minor child –> homestead cannot be devised
- If SS but no minor child –> only proper devise is 100% fee simple to SS
- If no SS and no minor child –> can devise however you want
exempt property from probate
- household furniture, appliances, and furnishings up to $20k in value
- two motor vehicles
- all qualified tuition programs/college funds
if a will specifically devises exempt property then
we follow the will
family allowance
$18,000 (need to petition for it)
who can make a will?
any person of sound mind, 18+ or an emancipated minor
will formalities
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
codicil requirements
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
who can witness a will?
any competent person, even an interested person is ok so long as they are not the sole beneficiary
Revocation of a will by physical act
- 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
Revocation by another writing
Subsequent will or codicil will only revoke the inconsistent parts if it doesn’t expressly say it intends to revoke the previous will
If you give to your spouse in your will and then get divorced
the devise to your ex-spouse is void and the law treats as if they predeceased you
How can you revive a will once its revoked?
only way to revive is to re-execute the will
If you revoke a codicil
it does NOT revoke the will – only the codicil
If you revoke a will that has a codicil
it revokes both the will and the codicil (bc the codicil came after)
Incorporation by reference
can incorporate other documents into the will be referencing them but THEY MUST BE IN EXISTENCE when the WILL IS EXECUTED
Separate writing identifying devises of tangible property
Is incorporated by reference, can be changed even after executing the will, only includes tangible personal property (not real property)
fraud, duress, mistake, and undue influence
make the will VOID
penalty clause for contest
not allowed
simultaneous death law
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)
Antilapse statute
only applies if related by blood (applies to half siblings)
if you predecease the testator, your descendants get your gift
devises to multigenerational classes
follow per stirpes (so if someone predeceases it goes to their descendants)
Reformation to correct mistakes
EE allowed but there must be clear and convincing evidence of testator’s intent to correct a mistake or clear up an ambiguity
prenups and postnups must be
- witnessed
- full and fair disclosure if signed after marriage
- fair disclosure if signed before marriage
if you remarry the spouse you have previously divorced
a benefit in your will to them will still apply
slayer statute
if you killed/caused the death, you don’t inherit from them (treated as if you predeceased) and it goes to your descendants
if you are not convicted of the killing then
if the court finds by greater weight of the evidence (51%) that the killing was unlawful or intentional, killer doesn’t inherit
costs and attorneys fees
attorney for PR is first to be paid
if you are contesting a will, who has the burden?
the proponent of the will must establish prima facie case that the will was properly executed
self proving affidavit of a will
is prima facie evidence that a will was properly executed
probate of will in a foreign language
needs to be translated to english to be probated
a lost or destroyed will is presumed
to be revoked
overcoming presumption of lost or revoked will
- two disinterested witnesses testify as to the specific contents of the will OR
- one disinterested witness can prove by a correct copy
if a creditor is notified by newspaper
they have 90 days to make a claim or 30 days after personally served with notice (whichever is greater)
in testate estates, what is the preference for appointing a PR?
- person named in the will as PR
- person selected by a majority of the interested people
- a devisee under the will
in intestacy estates, what is the preference for appointing a PR?
- the surviving spouse
- person selected by a majority in interest of the heirs
- the heir nearest in degree (next of kin)
who can be a PR?
FL resident at time of death and of sound mind
if someone is not a FL resident, they cannot be a PR unless they
- are a legally adopted child or adoptive parent
- are related by lineal conseguity (descendants)
- are a spouse of anyone in #1 and #2
who cannot be a PR?
- anyone convicted of a felony
- mentally or physically unable to perform duties
- under the age of 18
A PR might be removed if they
- 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
PR general powers
- distribute assets
- manage decedents business for up to 4 months
- manage the homestead (pay taxes, mortgage)
- fiduciary duty to the estate
PR right to sell property
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
Order of payment of expenses
- PR for costs and PR’s attorney
- Funeral expenses up to $6k
- Debts and taxes owed to federal government
- Reasonable/necessary hospital bills from 60 days before death
- Family allowance ($18k)
- Arrearages for court ordered child support
- Debts incurred from running decedent’s business
- All other claims against decedent
what happens to the PR after administration?
they are discharged and are released/barred from any action against them as surety of the estate
once the estate is completely administered and the PR is discharged
the estate will NOT reopen if a later will is discovered but may be reopened is additional estate property is discovered
summary administration
FL resident or non-resident testate estate that:
1. does not exceed $75k
2. decedent has been dead for more than 2 years
ancillary administration
non-FL resident died with assets in Florida
to disclaim an interest must
- be in writing
- describe the interest being disclaimed
- signed, witnessed, and acknowledged
- delivered
self-proving a will
don’t need a notary to make a will valid but a notary will make the will self-proving
general devise
bequest of money that is payable out of the general assets of the estate
demonstrative devise
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)
specific devises
gift of property that is particularly designated and can ONLY be satisfied by receiving the particular property
doctrine of ademption
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
Ambiguity in a will
FL allows evidence to cure any ambiguity in a will
PR notice to creditors
must give personal notice to “reasonably ascertainable creditors”
after notice is given to creditors
PR must file formal notice of petition for probate and serve on interested persons
overcoming presumption of lost or revoked will
- two disinterested witnesses testify as to the specific contents of the will OR
- one disinterested witness can prove by a correct copy
Acts of independent significance
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”
