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
