FL - Wills Flashcards
INTESTATE SUCCESSION
Definitions
Per Stirpes (Strict) “BY THE ROOTS”
Descendants take by representation the share that the deceased person would have taken had he survived to be an heir.
in FL, ALWAYS PER STIRPES
In FL, ALWAYS DETERMINED AT FIRST GENERATIONAL LEVEL, even if no living takers are at that level.
EXAMPLE 1
W (Dead)
S1(1/3) S2(1/3) D1(Dead)
GC1(1/9) GC2(1/9) GC3(1/9)
**Had daughter survived W, there would have been a per capita (“by the head) distribution, each child of W would take 1/3. Because the daughter predeceased W the 1/3 share that would have passed to her goes by representation to her 3 children, who take 1/9. **
EXAMPLE 2
J (Bro-Dead)——D (Dead)—–H(Sis-Dead)——-W(Bro-Dead)
| | |
J1 J2 J3 J4 J5 H1 H2 H3 W1 W2
(J’s Kids 1/15 Each) (H’s Kids 1/9 each) ( W’s Kids 1/6 each)
**JDHW are at same level, each received 1/3 of D’s estate. **
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Surviving Descendants are ALL Descendants of Surviving Spouse — ENTIRE ESTATE
If the decedent is survived by a spouse and descendants, all of whom are also descendants of the surviving spouse (children grandchildren of 1 marriage), and the surviving spouse has no other descendants, the survive spouse takes the ENTIRE INTESTATE ESTATE
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
NOT ALL Surviving Descendants are Descendants of Surviving Spouse — ONE HALF
IF the decedent is survived by 1 or more children or more remote descendants who are not the descendants of the surviving spouse (children or grandchildren of prior marriage), the surviving spouse takes ONE HALF of the estate and the other one half passes to the descendants PER STIRPES.
EXAMPLE
------------ W (DEAD)---------------H
| |
A B C
W has a child (A) by her prior marriage, which ended in divorce. W Marries H and has 2 children, B and C. H does not adopt A. W dies intestate and is survived by H and 3 children. H takes 1/2 of estate, and the other 1/2 is divided between the 3 children.
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
The right of a spouse to inherit from the estate of the other spouse is conditioned on the existence of the marital relationship at the time of the decedent’s death.
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
Divorce – No Longer Surviving Spouse
If the parties are divorced before the decedent’s death, the marriage relation is severed and the parties are treated as strangers for purposes of descent and distribution
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
Legal Separation – Estranged Spouse and Inherit
A legal separation does NOT sever the marital relationship and is insufficient to deprive a spouse of the right to inherit, regardless of the length of the separation.
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
The portion of the estate that does not pass to the surviving spouse or the entire estate if the decedent left no surviving spouse, passes in the following manner
Portion Not Passing to Spouse Passes to Descendents
If No Descendants, to Parents of Surviving Parents
If no Descendeants or parents, to Brothers and Sisters and Their Descendants
If No descendants, to parents or descendants of parents
(i) to grandparents or surviving grandparent
(ii) if no grandparents, to descendants of grandparents, per stirpes
(iii) if no grandparents or their descendants on maternal side, to grandparents or descendants on patternal side (and Vice Versa)
If no grandparents or their descendants, to kindred of last deceased spouse
If none of the above, escheat to the state
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
Portion Not Passing to Spouse Passes to Descendents
The portion of the estate that does not pass to the surviving spouse passes to the decedents descendants. These descendants take PER STIRPES
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No Descendants, to Parents or Surviving Parents
If the decedent was not survived by descendants, the entire estate passes to the decedent’s mother and father in equal shares. If only 1 parent survived the decedent, that parent takes the entire estate.
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If no Descendeants or parents, to Brothers and Sisters and Their Descendants
If the decedent leaves no surviving descendants or parents, the estate goes to the decedent’s brothers and sisters and their descendants, PER STIRPES.
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No descendants, parents, or descendants of parents —-> then broken down as follows
If the decedent was not survived by descendants, parents, brothers or sisters or the descendants of brothers or sisters, the estate is divided into two shares. One share goes to the maternal kindred and the other share goes to the paternal kindred as follows:
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No descendants, parents, or descendants of parents —-> then broken down as follows ::
(i) to grandparents or surviving grandparent
If, e.g., both maternal grandparents survive, the 1/2 share for maternal kin go to the two grandparents, 1/4 each. If however, only the maternal grandmother survives the decedent, she takes the entire 1/2 maternal share
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No descendants, parents, or descendants of parents —-> then broken down as follows ::
(ii) if no grandparents, to descendants of grandparents, per stirpes
If both paternal grandparents predeceased the decedent, the 1/2 share for paternal kin goes to paternal uncles and aunts and the descendants of deceased uncles and aunts
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No descendants, parents, or descendants of parents —-> then broken down as follows ::
(iii) if no grandparents or their descendants on maternal side, to grandparents or descendants on patternal side (and Vice Versa)
If there are no surviving paternal grandparents or descendants of paternal grandparents, the entire state (and not just 1/2) goes to the maternal grandparents and their descendants (and vice versa) in accordance with the above two paragraphs
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If no Grandparents or their descendants, to Kindred of Last Deceased Spouse
If the decedent was not survived by a spouse, descendants, parents or the descendants of parents, or grandparents or the descendants of grandparents, the decedent’s estate goes to the kindred of the last deceased spouse (in accordance with the foregoing rules) as if the deceased spouse had survived the decedent, inherited the decedent’s estate and then died intestate
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If none of the above, escheat to the state
If the decedent was not survived by grandparents or the descendants of grandparents, and if there are no living grandparents or descendants of grandparents of the last deceased spouse, the decedent’s estate escheats to the state of FL
INTESTATE SUCCESSION
Special Cases
Adopted Children
As to Adopting Family – Adopted Child Treated Same as Natural Child
Can inherit the same as normal child.
A child adopted after the execution of a will is a PRETERMITTED CHILD within the meaning of FL’s Pretermitted Child Statute.
Similarly, an adopted child is conserved a descendant within the meaning of FL’s anti lapse statute
INTESTATE SUCCESSION
Special Cases
Adopted Children
As to Natural Parents – All Inheritence Rights Cut Off
EXCEPTION – Death of A Natural Parent
Adoption of a child by the spouse of a natural parent who married the natural parent AFTER the death of the other natural parent has NO EFFECT on inheritance rights between the child and the family of the deceased natural parent.
Also, adoption of a child by a close relative has no effect on the relationship between the child and the families of the deceased natural parents
As natural father dies, and A’s natural mother subsequently married S, who adopted A, A would continue to have inheritance rights through his deceased natural father (from his natural grandparents), notwithstanding his adoption by a new father.
INTESTATE SUCCESSION
Special Cases
NonMarital Children – Child of Mother for Inheritance Purposes in ALL cases.
Inheritance Rights As to the Natural Father
DAD BY ESTOPPEL
A non marital child inherits from his father and the father’s family ONLY IF:
(i) the NATURAL PARENTS PARTICIPATED IN A MARRIAGE CEREMONY before or after the child’s birth, even if the attempted marriage is void;
(ii) paternity is established by an ADJUDICATION before or after the death of the father; or
(iii) the father ACKNOWLEDGES paternity in WRITING
Note: an action to establish paternity must be commenced within 4 years from the date the child reaches the age ft he majority. however, this limitation does NOT apply to paternity actions brought in probate to determine heirship .
INTESTATE SUCCESSION
Special Cases
Half Bloods
Halfbloods are brothers and sisters who have only one common parent
H -------- W --------------------H2
| |
A B C
INTESTATE SUCCESSION
Special Cases
Half Bloods
Half Bloods Take Half as Much as Whole BLoods
Where property passes to collateral kindred of the intestate, if some of the kindred are of the half blood of the intestate and others are of the whole blood, those of the half blood inherit only half as much as those of the whole blood. Thus, A would take 1/3 and B would take 2/3’s of C’s estate.
H (dead)------- W(dead) --------------------H2 (dead)
| |
A B C
If A Dies, B and C take 1/2 each. If all the collateral kin are of the half blood, they take whole parents.
INTESTATE SUCCESSION
Special Cases
Half Bloods
Half Bloods Take Half as Much as Whole BLoods
Distinction Applies Only to Inheritance by Collateral Kin
The half blood / whole blood distinction applies ONLY to inheritance by collateral kin. Suppose above, it was W who died intestate, survived by her daughter A (first marriage) and by her daughters B and C (second marriage). They would each take 1/3 from W’s estate.
H(dead) -------- W(dead) ---------------H2 (dead)
| |
A B C
INTESTATE SUCCESSION
Disinheritance
A will provision that expressly disinherits an heir is INEFFECTIVE IF the testator dies partially intestate.
It will pass accordingly to intestate.
SUBSIDIARY PROBLEMS COMMON TO INTESTACY AND WILLS
UNiform Simultaneous Death Act – Property Pass As Though Owner Survived and Beneficiary/heir Did not
USDA Applies UNLESS Instrument Provides Otherwise
No one is compelled to to have the statutes presumption apply to her estate
under the statute the presumption does not apply if “a contrary intention appears n the governing instrument”
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Evidence of Simulataneous Death
120 Hour Rule NOT ADOPTED IN FL
The USDA Applies ONLY IF there is NO SUFFICIENT EVIDENCE of survival
To Cover the above situation, the UPC and the revised version of the USDA provide a person must survive the decent by 120 hrs in order to take as will beneficiary, intestate heir, life insurance beneficiary, or surviving joint tent. HOWEVER, FL DID NOT ADOPT THE 120 HR RULE.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Disclaimers
Procedure for Making a Disclaimer
Requirements for Validity
To be valid, a disclaimer must
(i) be in a WRITING IDENTIFIED AS A DISCLAIMER
(ii) DESCRIBE THE INTEREST OR POWER being disclaimed;
(iii) be SIGNED WITNESSED AND ACKNOWLEDGED; AND
(iv) be DELIVERED
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Disclaimers
Procedure for Making a Disclaimer
Requirements for Delivery
Delivery Method Dictated by Type of Interested Disclaimed
Intestate or Testamentary Gift – > PR, if none, Clerk of Court
Testamentary Trust–> Trustee, if none, to PR, if none, to Clerk of Court
Inter Vivos Trust –> Trustee, if none, Clerk of Court, if before trust becomes irrevocable, to Grantor
Nonprobate Transfer (life insurance or IRA)–> Person Obligated to Distribute the Interest, if before irrevocable designation, person making the beneficiary designation
Surviving Joint Tenancy or Tenant by the Entirety –> person to whom disclaimed interest passes
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Disclaimers
When Right to Disclaim is Barred
Barred IF the beneficiary gives a WRITTEN WAIVER of the right to disclaim or if any of the following occur before the disclaimer becomes effective;
(i) the beneficiary ACCEPTS the property or any of its benefits
(ii) the beneficiary VOLUNTARILY ASSSIGNS, TRANSFERS or ENCUMBERS the interest or contracts to do so
(iii) the property is SOLD pursuant to judicial process; or
(iv) the beneficiary is INSOLVENT
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Wrongful Conduct of Heir or Beneficiary
Slayer Statute - Killer Forfeits All Rights in Victims Estate
A person who UNLAWFULLY and INTENTIONALLY kills or participates in procuring the death of the decedent is not entitled to any benefits under the decedent’s will or under the probate code.
The estate passes as if the killer had predeceased the decedent.
However, the statute does not bar the killer’s child from succeeding to property that otherwhise would have passed to the killer.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Wrongful Conduct of Heir or Beneficiary
Slayer Statute - Killer Forfeits All Rights in Victims Estate
Proof of Killing – Evidentiary Standard
CONVICTION OF MURDER – Conclusive Proof
A FINAL JUDGMENT of CONVICTION of murder in ANY degree is inclusive for purposes of the statute.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Wrongful Conduct of Heir or Beneficiary
Slayer Statute - Killer Forfeits All Rights in Victims Estate
Proof of Killing – Evidentiary Standard
Other cases- Greater weight of the Evidence (51%)
In the absence of a conviction of murder in any degree, the court may determine the greater weight of the evidence whether the killing was unlawful and intentional.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Advancement of Intestate Share
An advancement is a gift made to a next of kin with the intent that the gift be applied agains the share that the next of kin inherits from the donors estate.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Advancement of Intestate Share
FL – Proof of Advancement MUST BE IN WRITING
No gift is to be considered an advancement unless the intention to have it so treated is declared in a CONTEMPORANEOUS WRITING by the decedent OR ACKNOWLEDGED IN WRITING as such by the heir.
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Advancement of Intestate Share
Procedure if Advancement Found
Amount advanced is added to the net value of estate for purposes of distribution then the heir who received advancement has his intestate share reduced by the amount of the advancement, however, if the advancement is greater than the heirs intestate share, he is not responsible for returning the excess
Actual estate estate 200K
advancement 50K
-----------------------------------
250K
subtract from 50K from share total and thats what advancer gets
SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS
Advancement of Intestate Share
Advancement Valued at Time of Gift
The value of the advancement is deterred as of the time the gift was made and any fluctuation in value of the advanced property will not affect the position of the next of kin
EXECUTION OF WILL
Testamentary Capacity – Must be 18 and of Sound Mind
IN FL, 18 or emancipated minor has the right and power to make a will
Must have sound mind
EXECUTION OF WILL
Formal Requirements
There are 6 formal reqrirsites that must be satisfied in order to validly execute a will or codicil. 3 are for the testator and 3 are for the witnesses.
TESTATOR
(1) Will or codicil must be SIGNED BY THE TESTATOR or by another person at the testators direction and in her presence
(2) Testator must SIGN AT THE END OF THE WILL
(3) Testator must sign (or acknowledge her previous signature**) in the WITNESSES’ PRESENCE
WITNESSES
(4) TWO ATTESTING WITNESSES are required. In FL, there is NO MINIMUM AGE REQUIREMENT for witnesses to a will. Witnesses are competent if they have the ability to observe the testators affix her signature to the will and the ability to comprehend the nature of her act
(5) Witnesses must sign IN THE TESTATOR’S PRESENCE
(6) Witnesses must sign IN THE PRESENCE OF EACH OTHER
EXECUTION OF WILL
Formal Requirements
Testator’s Signature
PRoxy Signature
FL permits the testator’s signature to be made by another at the testator’s direction and in the testator’s presence.
If the person signs the testator’s name and then signs his own name the person can be counted as one of the two needed attesting witnesses.
EXECUTION OF WILL
Formal Requirements
Testator’s Signature
Signature at the End Requirement
Will must be signed at the end. Requirement is satisfied if the testator’s signature is physical in immediate juxtaposition to the dispositive provisions of the insturemnet. Thus, a will is validly executed in FL if the testator fails to sign on the blank intended for her signature but instead signs the attestation clause that appears immediately thereafter
WHERE MATERIAL FOLLOWS TESTATOR’S SIGNATURE
– ENTIRE WILL IS INVALID if the matter appearing below the testator’s signature is a dispositive provision. Unclear if not a dispositive. May apply second view (above signature ok, but below disregarded)
EXECUTION OF WILL
Formal Requirements
Presence Requirement
FL imposes 3 separate presence requirements.
Minority View – Scope of Vision Test ***
Parties must be in each other’s scope of vision when they sign. Under this test, a person is present only if he could have seen the signing. This does not mean the signing must actually have been observed, but only that the person was in such close proximity that he COULD HAVE SEEN THE SIGNING HAD HE LOOKED
Majority View – Conscious Presence Test
Satisfied if each party was conscious of where the other parties were and what they were doing, and the act of signing took place nearby, within the GENERAL AWARENESS AND COGNIZANCE of the other parties.
EXECUTION OF WILL
Formal Requirements
Witnesses
FL does not Require Publication of A Will
A will is admissible to probate even though the witnesses though the instrument they signed was a power of attorney.
EXECUTION OF WILL
Formal Requirements
Witnesses
Interested Witness Rule Abolished in FL
A will or codicil or any part of either is not invalid because the will or codicil is signed by an interested witness
EXECUTION OF WILL
Formal Requirements
Attestation Clause
This clause, which appears immediately below the signature line for the testator and move the witnesses signature lines and receipts the elements of due execution.
PRIMA FACIA EVIDENCE of the facts therein.
Unlike a self-proving affidavit, an attestation clause does not constitute sworn testimony and cannot service as a substitute for the courtroom testimony of the attesting witnesses.
EXECUTION OF WILL
Formal Requirements
Self-proving Affidavit
Will made self proved at the time it is executed.
The testator and attesting witnesses sign the will, and then sign a sworn affidavit BEFORE A NOTARY PUBLIC reciting that the testator declared to the witnesses that the instrument was her will, and that the testator and the witnesses all signed in the presence of each other, present at the same time. Can be executed later.
Serves as substitute for court testimony of attesting witnesses – sworn testimoney – no further proof needed
EXECUTION OF WILL
Formal Requirements
Self-proving Affidavit
Serves as substitute for court testimony of attesting witnesses
sworn testimoney – no further proof needed
EXECUTION OF WILL
Formal Requirements
Self-proving Affidavit
Signatures on Affidavit Can Be Counted as Signatures Needed on Will
Signatures on the affidavit can be counted as the signatures needed on the will itself. Because there is no nerequirement that the witnessed sign at any particular place on the will, the signatures on the affidavit are sufficient for execution.
**FL courts would reach the same result if the testator signed the self-proving affidavit but did not sign the physical end of the will itself *******
EXECUTION OF WILL
Other Types of Wills
Holographic Wills Not Recognized in FL
Holographic Wills – Wills entirely in the testator’s handwriting and signed by the testator BUT NOT WITNESSED by attesting witnesses.
FL does NOT recognize holography wills even those validly executed in another state. In FL, all wills MUST be witnessed by 2 attesting witnesses
EXECUTION OF WILL
Other Types of Wills
Holographic Wills Not Recognized in FL
FL Will May be Handwritten by MUST BE WITNESSED
FL will can be handwritten and signed correctly w 2 attesting witnesses
Holographic will is a term of arts – handwritten, signed and UNATTESTED
EXECUTION OF WILL
Foreign Wills
A will (other than a holographic or oral will) executed by a NONRESIDENT of FL is valid and admissible to probate in FL if validly executed under the laws of the state or country where the testator was at the time of the wills execution
COMPONENTS OF A WILL
Integration
What sheets were present at the time of will execution and thus compromise the decedent’s last will?
Will proponent must show that the pages were PRESENT WHEN THE WILL WAS EXECUTED and were INTEDNEDD BY THE TESTATOR to be apart of the will.
- Both requirements presumed when there is a physical connection of pages (staple, clip), when there is an integral coherence by provisions running from page to page or when the pages read together set out an orderly disposition plan. The reqs can also be established by the testimony of witnesses or other extrinsic evidence
COMPONENTS OF A WILL
Incorporation by Reference (Pour Over)
An extrinsic Doc may be incorpatied into the will be reference so that it is considered part of the will. to incorporation by reference 3 requirements must be met
(i) the document must be IN EXISTENCE at the time the will was executed
(ii) the language of the will must SUFFICIENTLY DESCRIBE the writing to permit its ID and
(iii) the will must MANIFEST AN INTENT TO INCORPORATE the dcoument
COMPONENTS OF A WILL
Incorporation by Reference (Pour Over)
Document must be in Existence at Time of Execution
Exception – List Disposing of Items of Tangible Personal Property
A will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than property in trade or business. The writing must be SIGNED by the testator and must DESCRIBE the items and the devisees with reasonable pertaining. The writing may but need not be referred to as one in existence at the time of the testator’s death. IT may be prepared before or after the execution of the will and it may be altered by the testator after its initial preparation. If more than 1 exists, then the extent of any inconsisties the most recent writing revoke the in consent provisions of any priori writings.
COMPONENTS OF A WILL
Nonprobate Assets Cannot be Disposed by Will
Nonprobate - interests that pass at death other than by will or intestacy
(i) property passing by contract (life insurance proceeds and employee benefits)
(ii) property passing by right of survivorship (joint tenants w right of survivorship or tenants by the entirety)
(iii) property held in trust
