FL Wills Flashcards
Are express words needed to create right of survivorship in joint bank account?
NO
Is fraud in inducement that results in someone being omitted from will affect enforcement of will?
NO
In insolvent cases, assets are to be paid to creditors in what order?
Class 1
- costs, expenses of administration, compensation of personal rep & their atty’s, & atty’s fees
Class 2
- reasonable funeral expenses, interment, & grave marker expenses (NOT to exceed $6k)
Class 3
- debts & taxes with preference under federal law, medicaid claims, & claims in favor of the state for unpaid court costs, fees, or fines
Class 4
- reasonable & necessary medical expenses of the last 60 days of the last illness of decedent
Class 5
- family allowance
Class 6
- arrearage from court ordered child support
Class 7
- debts acquired after death by continuation of decedent’s business
What is:
1. testate
2. decedent
3. intestate
4. devise
5. probate
- TESTATE = died with a will
- DECEDENT = deceased person
- INTESTATE = dies without a will or dies with an invalid will (all or part invalid)
- DEVISE = leaving property to someone through a will
- PROBATE = formal process involving the state by which ownership of property is transferred from a decedent to someone else
What type of interest does the beneficiary of a will have?
Expectancy Interest
until testator dies
What is a codicil?
A document that amends or revokes a will
MUST be executed w/ same testamentiary formalities as will
What are the will execution formality requirements?
- will must be in writing
- signed by testator (must be valid testator)
- must be signed at the end (last thing done)
- signed in the presence of 2 attesting witnesses
- must sign in presence of testatory and another
- witnesses can acknowledge testator’s previous signature in their presence
Who is a valid testator?
- 18 years old or emancipated minor
- of sound mind
- present intent to make a will
1 & 2 = testamentary intent | 3 = testamentary intent
Who can serve as an attesting witness?
ANY competent person
no age requirement
What happens if a portion of a will follows testators signature?
- if added at time will is executed = Will INVALID
- if added after will executed = clause added after INVALID
What is a holographic will?
A will that is entirely in the handwriting of the testator & signed by the testator, BUT lacking witnesses
NOT reognized in FL, unless they meet all formalities
YOU GOT THIS
YOU WILL PASS THE BAR EXAM
For the “witness presence” requirement, what test does FL follow?
- Scope of Vision –> signing parties must be within each other scope of vision (FL follows this)
- Conscious Presence –> signing parties must be conscious of each other (majority rule)
When is a will executed by nonresident of FL valid in FL?
If validly executed under the law of the place where testator was at time of execution
will NEVER be valid if an unattested holographic will
Can interested witnesses take under will?
YES!
For a will to be probated, what must happen?
A will must be proved (2 ways):
1. will is self-proving; OR
2. oath of an attesting witness before judge or court clerk
When is a will self-proving?
For a will to be self-proving, at the time its signed by testator & witnesses (or at a time later during testators life), a self-proving affidavit, reciting all elements of due execution is sworn to by testator & witnesses before notary public
How do you make an electronic will self-proving?
- self-proving affidavit must be made a part of, attached to, or logically associated with the electronic will; AND
- will must designate a qualified custodian to control will until offered for probate or revoked by testator
If a will is NOT self-proving & witnesses can’t be located or dead or incompetent, what can be done to prove a will?
Court will accept oath of personal representative that they believe writing to be decedents last will
What is an attestation clause?
creates the elements of due execution & is prima facie evidence of those elements
in event witness forgets or misremembers the facts surrounding execution
List the different ways a will can be revoked?
- Subsequent writing - another will (same formalities as will)
- Physical act - burning, tearing, concealing, defacing obliterating, or destroying the document (cannot partially revoke, MUST have intent to revoke)
- Divorce
revocation of one executed copy revokes all other executed copies
If a “subsequent writing” of a will does NOT expressly revoke earlier will(s), what happens?
2 are read together with las instrument revoking their earlier ONLY & the extent on INCONSISTENT provisions
When is a will validly revoked by a physical act by another person?
- at testators direction; AND
- in testators presence
Does remarriage revive a will in favor of spouse?
NO!
Provisions that are revived
1. insurance policy
2. payable on death account
3. nonprobate transfer
If a will is revoked, does it revoke the codicils?
Yes
How can a lost or destroyed will be proven?
- testimony of 2 disinterested witnesses; OR
- 1 disinterested witness and photo/carbon copy
What are the 2 presumptions as to revocation?
Will presumed revoked when [rebuttable]:
1. will in testators possession found in mutilated condition after testators death - intent presumed; OR
2. will last seen in testators possession & control but cannot be found after testators death - intent presumed
When can dead/revoked will be renewed?
- re-executed with necessary formalities; OR
- republished by executing a codicil to the will
merely destroying later will, will NOT revive
When does the doctrine of dependent relative revocation apply?
When a testator revokes their will under mistaken belief that another disposition of their property would be effective, & BUT FOR this mistaken belief, they would have NOT revoked
When can a document be incorporated by reference into a will?
- it is in existence at time of will execution
- it is sufficiently described in will to permit identification; AND
- the will manifests an intent to incorporate document
Exception to 1: FL testator can refer in their will to a list specifying the distribution of items of tangible personal property & to write or alter list later
A will may refer to a written statement or list to dispose of items of tangible personal property, but what must that writing include?
- MUST be signed by testator
- MUST describe items & the devisees with reasonable certainty
- MAY be prepared before or after execution of will
- MAY be altered by testator after its initial preparation
When does a gift “lapse”?
When beneficiary named in will or revocable trust dies before testator dies, gift will lapse UNLESS anti-lapse statute applies
When does the anti-lapse statute apply?
If there is a lapse in gift given in a will, the gift will pass to the intended beneficiary’s surviving family members PROVIDED THAT those surviving family members are descendants of the testator’s grandparents
If a will makes a gift to a class, who takes share in gift?
ONLY class members who survive testator
UNLESS the will provides otherwise or anti-lapse statute applies
What happens when the residuary estate is devised to 2 or more people & gift to 1 of them fails?
The surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue
What is a void gift?
can anti-lapse apply?
A gift to a beneficiary who was dead at time of execution
anti-lapse can apply
What is a devise, bequest, or legacy?
- Devise –> gift of real property
- Bequest –> gift of personal property
- Legacy –> gift of personal property in a will, usually money
What are the different types of Legacies?
- Specific –> gift of a particular item of property distinct from all other objects in testators estate
- General –> gift of a general economic benefit payable out of general assets of the estate without requiring any particular source of payment
- Demonstrative –> gift of a general amount that is to be paid from particular source or fund
What constitutes residuary estate?
Consists of balance of testators property after paying:
1. debts, expenses, & taxes
2. specific, general, & demonstrative gifts
How do gifts abate?
order in which gifts will be sacrificed
1. property passing by intestacy
2. residuary devises & bequests
3. property not specifically or demonstratively devised
4. specific & demonstrative gifts
What is abatement?
The process of reducing testamentary gifts in cases where the estate assets aren’t sufficient to pay all claims against estate & satisfy bequeaths for devisees
What is ademption, & what does it apply to?
If specifically bequeathed property is NOT in testators estate at death, the bequest is adeemed & beneficiary takes nothing
Applies to:
1. specific devises
2. bequests
When are liens exonerated before dispersed?
if will specifically directs it
What is a patent and latent ambiguity?
- Patent –> exists if a provision is ambiguous on its face (fails to convey a sensible meaning)
- Latent –> exists when language of will is clear on its face but cannot be carried out without further clarification
Is evidence admissible to show that testator made a mistake in describing a beneficiary or the property?
Burden?
Yes, always admissible if proven & will results in reformation
CLEAR & CONVINCING EVIDENCE
If intestate decedent is survived by a spouse with no lineal descendents, where does the estate go?
100% to surviving spouse
If intestate decedent is survived by spouse & lineal descendents of spouse, where does the estate go?
100% to surviving spouse
If intestate decedent is survived by a spouse & lineal descendents of the spouse & descendents NOT lineal to the spouse, where does the estate go?
50% to surviving spouse AND 50% split between all of the decedent lineal descendants
If intestate decedent is only survived by lineal descendents, where does the estate go?
equal shares to all lineal descendants
If intestate decedent is only survived by parents & siblings, & no spouse or lineal descendents, where does the estate go?
parents of decedent take estate
If intestate decedent is only survived by siblings & no parents, spouse, or lineal descendants, where does the estate go?
siblings take estate in equal shares
If intestate decedent is NOT SURVIVED by any siblings, parents, spouse, or lineal descendants, where does the estate go?
1/2 to paternal granparents, 1/2 to maternal grandparents
If NONE, it will ESCHEAT to the state
The intestacy statute applies to what?
the probate estate
What is NOT included in the probate estate?
- property passing by right of survivorship
- property passing by contract (life insurance & employee death benefits)
- bank acocunts or securities titled in payable on death or transfer on death form
- property held in trust
- property over which the decedent had a power of appointment
Can one disclaim their interest in a decedents estate?
Yes! partial or total allowed
- disclaimer treates as though they died before testator
- anti-lapse can apply
Kids born out of wedlock are heirs to who?
1 - MOM
2 - DAD, if:
- marries mom
- adjudicated dad before or after death
- acknowledges paternity in writing
What is an advancement?
A gift made to a next of kin with intent that the gift be applied against any share the next of kin inherits from the donors estate
When is a gift considered an advancement?
- the intention is declared in a contemporaneous writing by the decedent; OR
- acknowledged in writing as such by the heir (does NOT need to be contemporaneous)
What personal property is exempt & for spouse or decedent heir?
- up to $20,000 of household furnishings
- 2 vehicles used as family vehicles
- all qualified tuition programs
- any additional amounts passting to them
What is a family allowance?
Provides support during probate administration
- amount of allowance is up to $18,000 to the surviving spouse & lineal heirs who were receiving or owed support by the decedent
MUST be petitioned for
What is a pretermitted spouse and children?
- Pretermitted Spouse –> surviving spouse married testator after execution of will
- Pretermitted Children –> child born or adopted after execution of will
they take intestate share (comes out of residuary)
What is the elective share statute for wills?
automatic for spouse?
The statute gives the surviving spouse the election to take a statutory share of the estate instead of taking under decedents will
- elective share = 30% of the decedent’s elective estate
- not automatic, spouse must file notice of election within 6 months after service of notice of administration or 2 years after testators death
Does an advancement bind the beneficiaries successors?
NO,
- UNLESS, writing or acknowledgement specifically provide otherwise
When do pretermitted children NOT get an intestate share?
- They received an advancement equal to intestate share; OR
- omission was intentional; OR
- testator had other kids & left most of his estate to the other parent of the omitted child
Explain the slayer statute..
A person who feloniously or intentionally kills another forfeits all death-related benefits the slayer would have gotten from the decedent
- even if NOT convicted, court could lawfully find person forfeited their interest
What are ways to contest a will?
- Testator lacked testamentary capacity
- undue influence
- fraud
- mistake
- defective execution
- valid revocation
When does testator have testamentary capacity?
- 18+ years old or emancipated
- understands the nature of the act they are doing
- knows the nature & character of their property
- knows the natural objects of their bounty
- understands the dispositions they wish to make
When does an “insane delusion” invalidate a will?
When will is product of insane delusion
How does one establish that a will or gift was a result of undue influence?
- existence & exertion of influence;
- the effect of the influence was to over power the mind & free will of testator; AND
- the result was a will that could not have been executed but-for influence
When is an undue influence presumed?
If the will makes a substantial gift to one in a confidential relationship with testator who was actively procuring the will
What is a “no-contest” clause?
A provision in a will purporting to penalize a beneficiary for contesting will or instituting other proceedings relating to estate
UNENFORCEABLE IN FLORIDA
What are the different forms of administration?
1 - Summary Administration
- may apply if estate value minus exempt property is less than $75,000 or decedent has been dead for more than 2 years
2 - Ancillary Administration
- applies when nonresident dies leaving assets in FL
3 - Full Administration
- all other estates
What is the venue for a probate administration?
- Resident –> county where decedent resided at death
- Nonresident –> any county where decedent owned property
Who is a caveator?
An interested person who is warned that an estate will be administered or that a will may be admitted to probate without knowledgeg
- can file a caveat w/ circuit court containing statement of interest
noncreditor = may file before or after decedents death
creditor = may file after decedents death
What are the qualifications to act as personal representative of estate?
- 18+ year old
- have mental capacity
- not a convicted felon
- never convicted of abusing, neglecting, or exploiting the elderly or disabled
- FL resident (if NOT, must be relative)
What is the order of preference for appointment as personal representative?
Testate Decedent
1. person nominated in will
2. person selected by a majority in interest of persons entitled to estate
3. will beneficiary selected by court
Intestate Decedent
1. surviving spouse
2. person selected by a majority of heirs
3. closes heir
What are the duties of a personal representative?
1 - Secure & preserve estate
2 - keep estate assets separate from other property
3 - duty to give notice
- creditors: publish notice for 2 consecutive weeks in newspaper in county of administration MUST mail to ascertainable creditors
- spouse & beneficiary: serve copy of notice of administration
4 - Duty to file inventory of assets within 60 days of letters
When must a creditor file notice of claim on estate?
Ascertainable creditors
- 3 months after 1st publication; OR
- 30 days after service of notice
Unascertainable creditors
- within 3 moths after first publication of notice
To who doesn’t the anti-lapse statute apply to?
- spouses
- someone NOT related to testator
Do witnesses to a will need to know they are being witnesses for a will?
NO!
When is a will void?
If it’s execution procured by:
1. fraud
2. undue influence
3. duress
4. mistake
if only part of will was procured in those ways, only that part is void
