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Florida Bar Subjects > FL Wills > Flashcards

FL Wills Flashcards

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1
Q

Are express words needed to create right of survivorship in joint bank account?

A

NO

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2
Q

Is fraud in inducement that results in someone being omitted from will affect enforcement of will?

A

NO

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3
Q

In insolvent cases, assets are to be paid to creditors in what order?

A

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

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4
Q

What is:
1. testate
2. decedent
3. intestate
4. devise
5. probate

A
  1. TESTATE = died with a will
  2. DECEDENT = deceased person
  3. INTESTATE = dies without a will or dies with an invalid will (all or part invalid)
  4. DEVISE = leaving property to someone through a will
  5. PROBATE = formal process involving the state by which ownership of property is transferred from a decedent to someone else
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5
Q

What type of interest does the beneficiary of a will have?

A

Expectancy Interest

until testator dies

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6
Q

What is a codicil?

A

A document that amends or revokes a will

MUST be executed w/ same testamentiary formalities as will

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7
Q

What are the will execution formality requirements?

A
  1. will must be in writing
  2. signed by testator (must be valid testator)
  3. must be signed at the end (last thing done)
  4. 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
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8
Q

Who is a valid testator?

A
  1. 18 years old or emancipated minor
  2. of sound mind
  3. present intent to make a will

1 & 2 = testamentary intent | 3 = testamentary intent

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9
Q

Who can serve as an attesting witness?

A

ANY competent person

no age requirement

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10
Q

What happens if a portion of a will follows testators signature?

A
  • if added at time will is executed = Will INVALID
  • if added after will executed = clause added after INVALID
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11
Q

What is a holographic will?

A

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

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12
Q

YOU GOT THIS

A

YOU WILL PASS THE BAR EXAM

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13
Q

For the “witness presence” requirement, what test does FL follow?

A
  1. Scope of Vision –> signing parties must be within each other scope of vision (FL follows this)
  2. Conscious Presence –> signing parties must be conscious of each other (majority rule)
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14
Q

When is a will executed by nonresident of FL valid in FL?

A

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

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15
Q

Can interested witnesses take under will?

A

YES!

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16
Q

For a will to be probated, what must happen?

A

A will must be proved (2 ways):
1. will is self-proving; OR
2. oath of an attesting witness before judge or court clerk

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17
Q

When is a will self-proving?

A

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

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18
Q

How do you make an electronic will self-proving?

A
  1. self-proving affidavit must be made a part of, attached to, or logically associated with the electronic will; AND
  2. will must designate a qualified custodian to control will until offered for probate or revoked by testator
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19
Q

If a will is NOT self-proving & witnesses can’t be located or dead or incompetent, what can be done to prove a will?

A

Court will accept oath of personal representative that they believe writing to be decedents last will

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20
Q

What is an attestation clause?

A

creates the elements of due execution & is prima facie evidence of those elements

in event witness forgets or misremembers the facts surrounding execution

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21
Q

List the different ways a will can be revoked?

A
  1. Subsequent writing - another will (same formalities as will)
  2. Physical act - burning, tearing, concealing, defacing obliterating, or destroying the document (cannot partially revoke, MUST have intent to revoke)
  3. Divorce

revocation of one executed copy revokes all other executed copies

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22
Q

If a “subsequent writing” of a will does NOT expressly revoke earlier will(s), what happens?

A

2 are read together with las instrument revoking their earlier ONLY & the extent on INCONSISTENT provisions

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23
Q

When is a will validly revoked by a physical act by another person?

A
  1. at testators direction; AND
  2. in testators presence
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24
Q

Does remarriage revive a will in favor of spouse?

A

NO!

Provisions that are revived
1. insurance policy
2. payable on death account
3. nonprobate transfer

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25
Q

If a will is revoked, does it revoke the codicils?

A

Yes

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26
Q

How can a lost or destroyed will be proven?

A
  1. testimony of 2 disinterested witnesses; OR
  2. 1 disinterested witness and photo/carbon copy
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27
Q

What are the 2 presumptions as to revocation?

A

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

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28
Q

When can dead/revoked will be renewed?

A
  1. re-executed with necessary formalities; OR
  2. republished by executing a codicil to the will

merely destroying later will, will NOT revive

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29
Q

When does the doctrine of dependent relative revocation apply?

A

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

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30
Q

When can a document be incorporated by reference into a will?

A
  1. it is in existence at time of will execution
  2. it is sufficiently described in will to permit identification; AND
  3. 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

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31
Q

A will may refer to a written statement or list to dispose of items of tangible personal property, but what must that writing include?

A
  1. MUST be signed by testator
  2. MUST describe items & the devisees with reasonable certainty
  3. MAY be prepared before or after execution of will
  4. MAY be altered by testator after its initial preparation
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32
Q

When does a gift “lapse”?

A

When beneficiary named in will or revocable trust dies before testator dies, gift will lapse UNLESS anti-lapse statute applies

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33
Q

When does the anti-lapse statute apply?

A

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

34
Q

If a will makes a gift to a class, who takes share in gift?

A

ONLY class members who survive testator

UNLESS the will provides otherwise or anti-lapse statute applies

35
Q

What happens when the residuary estate is devised to 2 or more people & gift to 1 of them fails?

A

The surviving residuary devisees take the entire residuary estate in proportion to their interests in the residue

36
Q

What is a void gift?

can anti-lapse apply?

A

A gift to a beneficiary who was dead at time of execution

anti-lapse can apply

37
Q

What is a devise, bequest, or legacy?

A
  • Devise –> gift of real property
  • Bequest –> gift of personal property
  • Legacy –> gift of personal property in a will, usually money
38
Q

What are the different types of Legacies?

A
  1. Specific –> gift of a particular item of property distinct from all other objects in testators estate
  2. General –> gift of a general economic benefit payable out of general assets of the estate without requiring any particular source of payment
  3. Demonstrative –> gift of a general amount that is to be paid from particular source or fund
39
Q

What constitutes residuary estate?

A

Consists of balance of testators property after paying:
1. debts, expenses, & taxes
2. specific, general, & demonstrative gifts

40
Q

How do gifts abate?

A

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

41
Q

What is abatement?

A

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

42
Q

What is ademption, & what does it apply to?

A

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

43
Q

When are liens exonerated before dispersed?

A

if will specifically directs it

44
Q

What is a patent and latent ambiguity?

A
  • 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
45
Q

Is evidence admissible to show that testator made a mistake in describing a beneficiary or the property?

Burden?

A

Yes, always admissible if proven & will results in reformation

CLEAR & CONVINCING EVIDENCE

46
Q

If intestate decedent is survived by a spouse with no lineal descendents, where does the estate go?

A

100% to surviving spouse

47
Q

If intestate decedent is survived by spouse & lineal descendents of spouse, where does the estate go?

A

100% to surviving spouse

48
Q

If intestate decedent is survived by a spouse & lineal descendents of the spouse & descendents NOT lineal to the spouse, where does the estate go?

A

50% to surviving spouse AND 50% split between all of the decedent lineal descendants

49
Q

If intestate decedent is only survived by lineal descendents, where does the estate go?

A

equal shares to all lineal descendants

50
Q

If intestate decedent is only survived by parents & siblings, & no spouse or lineal descendents, where does the estate go?

A

parents of decedent take estate

51
Q

If intestate decedent is only survived by siblings & no parents, spouse, or lineal descendants, where does the estate go?

A

siblings take estate in equal shares

52
Q

If intestate decedent is NOT SURVIVED by any siblings, parents, spouse, or lineal descendants, where does the estate go?

A

1/2 to paternal granparents, 1/2 to maternal grandparents

If NONE, it will ESCHEAT to the state

53
Q

The intestacy statute applies to what?

A

the probate estate

54
Q

What is NOT included in the probate estate?

A
  1. property passing by right of survivorship
  2. property passing by contract (life insurance & employee death benefits)
  3. bank acocunts or securities titled in payable on death or transfer on death form
  4. property held in trust
  5. property over which the decedent had a power of appointment
55
Q

Can one disclaim their interest in a decedents estate?

A

Yes! partial or total allowed

  • disclaimer treates as though they died before testator
  • anti-lapse can apply
56
Q

Kids born out of wedlock are heirs to who?

A

1 - MOM
2 - DAD, if:
- marries mom
- adjudicated dad before or after death
- acknowledges paternity in writing

57
Q

What is an advancement?

A

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

58
Q

When is a gift considered an advancement?

A
  1. the intention is declared in a contemporaneous writing by the decedent; OR
  2. acknowledged in writing as such by the heir (does NOT need to be contemporaneous)
59
Q

What personal property is exempt & for spouse or decedent heir?

A
  1. up to $20,000 of household furnishings
  2. 2 vehicles used as family vehicles
  3. all qualified tuition programs
  4. any additional amounts passting to them
60
Q

What is a family allowance?

A

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

61
Q

What is a pretermitted spouse and children?

A
  • 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)

62
Q

What is the elective share statute for wills?

automatic for spouse?

A

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

63
Q

Does an advancement bind the beneficiaries successors?

A

NO,
- UNLESS, writing or acknowledgement specifically provide otherwise

64
Q

When do pretermitted children NOT get an intestate share?

A
  1. They received an advancement equal to intestate share; OR
  2. omission was intentional; OR
  3. testator had other kids & left most of his estate to the other parent of the omitted child
65
Q

Explain the slayer statute..

A

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

66
Q

What are ways to contest a will?

A
  1. Testator lacked testamentary capacity
  2. undue influence
  3. fraud
  4. mistake
  5. defective execution
  6. valid revocation
67
Q

When does testator have testamentary capacity?

A
  1. 18+ years old or emancipated
  2. understands the nature of the act they are doing
  3. knows the nature & character of their property
  4. knows the natural objects of their bounty
  5. understands the dispositions they wish to make
68
Q

When does an “insane delusion” invalidate a will?

A

When will is product of insane delusion

69
Q

How does one establish that a will or gift was a result of undue influence?

A
  1. existence & exertion of influence;
  2. the effect of the influence was to over power the mind & free will of testator; AND
  3. the result was a will that could not have been executed but-for influence
69
Q

When is an undue influence presumed?

A

If the will makes a substantial gift to one in a confidential relationship with testator who was actively procuring the will

70
Q

What is a “no-contest” clause?

A

A provision in a will purporting to penalize a beneficiary for contesting will or instituting other proceedings relating to estate

UNENFORCEABLE IN FLORIDA

71
Q

What are the different forms of administration?

A

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

72
Q

What is the venue for a probate administration?

A
  • Resident –> county where decedent resided at death
  • Nonresident –> any county where decedent owned property
73
Q

Who is a caveator?

A

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

74
Q

What are the qualifications to act as personal representative of estate?

A
  1. 18+ year old
  2. have mental capacity
  3. not a convicted felon
  4. never convicted of abusing, neglecting, or exploiting the elderly or disabled
  5. FL resident (if NOT, must be relative)
75
Q

What is the order of preference for appointment as personal representative?

A

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

76
Q

What are the duties of a personal representative?

A

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

77
Q

When must a creditor file notice of claim on estate?

A

Ascertainable creditors
- 3 months after 1st publication; OR
- 30 days after service of notice

Unascertainable creditors
- within 3 moths after first publication of notice

78
Q

To who doesn’t the anti-lapse statute apply to?

A
  1. spouses
  2. someone NOT related to testator
79
Q

Do witnesses to a will need to know they are being witnesses for a will?

A

NO!

80
Q

When is a will void?

A

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

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