FL Wills Flashcards
per stirpes
spouse
then chart the kids
(multiply bottom number by number of people youre giving $ to)
Will an interested witness render the will invalid in Florida?
no
In what order (first to last) do gifts abate in Florida?
- intestate
- residuary
- general
- specific/demonstrative
What is the basic theory of the power of appointment?
The donee will act as the donor’s agent and designate the beneficiaries of the donor’s property.
What does revocation by physical act require?
(1) Physical act; and
(2) Intent to revoke
Does Florida recognize valid holographic wills from other states? .
No,
Florida does not recognize valid holographic wills from other states unless Florida’s execution requirements are strictly adhered to.
when will the anti-lapse statute not apply?
When a will requires a beneficiary’s survival as a condition of inheritance, the anti-lapse statute will not prevent the devise from lapsing.
Esp if the will provides an alternate disposition for the gift (like a residuary to X)
Name the only time Florida would reopen an estate in probate
Florida courts will only reopen an estate if additional estate property is found.
who is an heir
someone entitled to receive property by intestate who died after or simultaneously with the decedent.
Are clauses disinheriting heirs valid?
No, clauses attempting to disinherit heirs are not enforced
(1) How do you disclaim an inheritance?
(2) Who cannot disclaim?
(!) Disclaimers must be in writing and properly signed, delivered, and filed to be effective
(2) Insolvent beneficiaries can’t disclaim an inheritance.
True or false:
A partial revocation of a will by physical act is invalid in Florida.
True; A partial revocation of a will by physical act is invalid in Florida.
What happens when an estate doesn’t have enough funds to devise?
When an estate has insufficient funds, the devised property is abated and legatees receive reduced benefits.
how does an advancement on an inheritance work?
A gift is an advancement on an inheritance when it is acknowledged in writing by the potential heir.
> value determined when given or when decedent dies whichever is first
The value advanced is later added back into the estate to determine the shares
then apportion everyone’s shares as if there had been no advancement and
at the end subtract the gift from that person’s apportioned share
Who can file for an elective share?
Only the spouse
Not even can a surviving spouse’s personal representative file for an elective share on the spouse’s estate’s behalf.
True or false
Florida will probate a will valid where executed if it is neither handwritten nor nuncupative(oral).
True
If additional property owned by a decedent is discovered after the decedent’s estate has been closed, can any interested party may petition the court for further administration of the estate?
yes, the estate can be re-opened if new property is found
If a testator makes a specific devise (leaves stamp collection to A) and then sells it, is the beneficiary still entitled to something?
Yes; they’re entitled to any portion of the purchase price of property that was owed to the testator at death as well as any insurance proceeds due with respect to the property at the testator’s death
Would a:
> life insurance policy
> Totten trust
> house owned in a joint tenancy with right of survivorship
be distributed through will?
No, they’re non-probate assets
Generally, a cause of action for fraud, duress, or undue influence accrues on the decedent’s date of death. An interested person must bring such action within four years after the decedent’s date of death.
Who can file a caveat with the court?
An interested person who wishes to have notice of the administration of an estate, either testate or intestate, or the admission of a will to probate
Does FL accept carbon copy of a will
Yes, but only if the specific content of the will is proved by a disinterested witness
If a will that was last seen in the testator’s possession cannot be found after the testator’s death, what happens?
A rebuttable presumption arises that the will was revoked by the testator, which may only be overcome by competent and substantial evidence.
how much does a half blood inherit?
half of what the kindred of the whole blood inherit.
Does a creditor’s failure to file a claim for liability against the decedent’s estate affect the creditor’s ability to enforce a lien or mortgage on the decedent’s property?
no
A challenge to an improper appointment must be made within how much time of notice of the opening of administration and the appointment of the personal representative?
three months
Must a personal representative be a FL resident?
Yes a PR has to be a FL resident unless they’re related to the decedent
> a challenge to an improper appointment has to be made within 3 months of notice of opening of administration case
In what ways can a codicil be revoked?
A codicil may be revoked in the same manner as a will:
> by physical act by burning, tearing, canceling, defacing, obliterating, or destroying it
> with the intent and purpose to revoke it.
True or False:
Prior to marriage, individuals may waive their rights as a surviving spouse to, among other items, an elective or pretermitted share of a decedent’s estate, homestead property, and a family allowance.
true
A pour over trust transfers the testator’s property to a trust to be distributed according to the terms of the trust instead of a will
A pour over trust will only be valid if its made before the will or concurrently
so trust after will = no good
When a Florida homesteader is survived by a spouse and no spousal waiver or minor children exist, the homestead may only be devised to the spouse in fee simple
A devise to any person other than the spouse is void, in which case the spouse receives a life estate in the homestead and the descendants take a remainder.
If a joint tenant kills the other joint tenant, then the decedent’s interest is severed and a tenancy in common is created.
> decedent’s interest passes to their heirs/devisees
> killer keeps their part of the tenancy in common
A surviving spouse may choose between accepting:
> an elective share of a testator’s estate
or
a devise under a will
an heir and decedent who die simultaneously are treated as having predeceased each other for will and life insurance purposes
When joint tenants die simultaneously, the property is treated similarly to tenancies in common.
A devisee of a specific devise of shares is entitled to any shares owned by the testator due to a corporate merger involving the devised shares that are part of the estate when the testator died.
A devisee of a specific devise of shares will make someone entitled to just shares not any cash that that’s converted into
if you’re devised shares then you have shares not cash value/ so if it ends up being sold ur not entitled to that money bc its not shares anymore
The personal representative is required to pay the expenses of the administration and the obligations of the decedent’s estate in the order of class (1 to 8) as established by Florida statute.
Class 1 – Costs associated with the estate/ attorneys fees
Class 2 – Costs associated with the funeral under $6,000
Class 3 – Debts and taxes owed to the government
Class 4 – Reasonable and necessary medical expenses associated with the last 60 days of the decedent’s final illness
Class 5 – Any family allowance * Class 6 – Arrearages from court-ordered child support owed by the decedent
Class 7 – Debts acquired after death to continue the decedent’s business (only to the extent of the business assets) and * Class 8 – All other claims.
The Florida Slayer Statute severs a joint tenancy when a joint tenant unlawfully and intentionally kills another joint tenant. The severance of the joint tenancy creates a tenancy in common in which the killer and the decedent’s heir have an equal right to possess the property but no right of survivorship.
so killer keeps his interest as tenancy in common
In Florida, if a will that was last seen in the testator’s possession cannot be found after the testator’s death, then a rebuttable presumption arises that the will was revoked by the testator.
3 ways to revoke a will
(1) by a subsequent instrument executed with the same formalities as a will
(2) by physical destruction of the will in its entirety or
(3) by operation of law.
intestacy will stop at section
A testator must execute a document with present testamentary intent in order for the document to be sustained as a will.
order of intestacy
(stops at section)
spouse
kids
parents
siblings and their kids
paternal/maternal kindred
a devisee is entitled to property owned by the testator at death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised or given obligation
So if A devises B a note.
then property is foreclosed, B will be entitled to that property
burden for simultaneous death act
preponderance of the evidence
when there are aunts/uncles/cousins make sure to look for grandparents
cus they’ll both get in equal parts
when an estate has multiple PRs who can make decisions?
there needs to be a majority concurrence unless otherwise provided
when a person doesn’t have actual knowledge that a there are multiple PRs, and they make a deal w just 1 of them for something from the estate’s pot, is it theirs?
yes that person’s dealings can keep whatever they dealed for bc its protected from any claims on the estate from other people saying that was their devise
who gets a homestead if the decedent dies intestate and theres a spouse, descendants, but no minor children?
the spouse gets a life estate
and the kids will get a remainder
A “pour-over” devise moves a person’s property into a trust. The property is then distributed according to the trust’s rules, not the person’s will.
allowed only if it was made before or at the same time as a will
when will a Will be made legit/self-proven?
when its made w 2 witnesses signing in front
any later date by the testator’s acknowledgement of the will and affidavits of the witnesses made in front of someone who can notarize
order of appointment of a personal representative for an intestate estate is:
(1) surviving spouse
(2) person selected by a majority in interest of decedent’s heirs
(3) heir nearest in degree or best-qualified heir in this group as selected by the court.
a personal rep can avoid liability for participating in something at the direction of the majority of PRs if they express their dissent to all other PRs in writing at or before the time of the action
Can you write in your will that you’re disinheriting someone?
No, in FL the only way to disinherit an heir is to make a will and devise all the property away
whats a caveat and when can you file one
a caveat is something filed by someone who wants the court to notify them when the administration of the estate begins
> interested parties
can file caveats whenever
> creditors
can only file after the person died
when there is a conflict between the will and the notebook (doctrine of incorporation by reference )
the will controls.
unless the lawyer is related to the testator, lawyers cant make wills for ppl when they/their fam member would get a bequest from it
how can a will be revoked?
(1) subsequent valid will
(2) physical act
> if destroyed by 3rd party, it has to be at the testator’s direction & presence
(3) operation of law
in intestacy how much will a spouse have
spouse will always have at least 50%
> 100% if same kids
50% if other not shared kids
when there is more than 1 personal rep how are decisions made?
there needs to be a majority and if an action is taken that 1 doesnt wanna be liable for then they have to put it in writing and give it to each PR
you need capacity at time of execution
this is shown by showing the testator had the ability to understand:
> the nature and extent of their property
persons who were natural objects of her bounty(spouse, children, etc)
effect of the disposition made
when can a pretermitted spouse take 100%?
when the decedent left behind the spouse and no kids
an advance of a devise will be valid as long as contemporaneous writing
