FL - Wills Flashcards
1
Q
INTESTATE SUCCESSION
Definitions
Per Stirpes (Strict) “BY THE ROOTS”
A
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. **
2
Q
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Surviving Descendants are ALL Descendants of Surviving Spouse — ENTIRE ESTATE
A
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
3
Q
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
NOT ALL Surviving Descendants are Descendants of Surviving Spouse — ONE HALF
A
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.
4
Q
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
A
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.
5
Q
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
Divorce – No Longer Surviving Spouse
A
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
6
Q
INTESTATE SUCCESSION
Intestate Share of Surviving Spouse
Effect of Divorce or Legal Separation on Right to Inherit
Legal Separation – Estranged Spouse and Inherit
A
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.
7
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
A
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
8
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
Portion Not Passing to Spouse Passes to Descendents
A
The portion of the estate that does not pass to the surviving spouse passes to the decedents descendants. These descendants take PER STIRPES
9
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No Descendants, to Parents or Surviving Parents
A
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.
10
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If no Descendeants or parents, to Brothers and Sisters and Their Descendants
A
If the decedent leaves no surviving descendants or parents, the estate goes to the decedent’s brothers and sisters and their descendants, PER STIRPES.
11
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If No descendants, parents, or descendants of parents —-> then broken down as follows
A
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:
12
Q
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
A
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
13
Q
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
A
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
14
Q
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)
A
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
15
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If no Grandparents or their descendants, to Kindred of Last Deceased Spouse
A
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
16
Q
INTESTATE SUCCESSION
Intestate Shares of Other Heirs
If none of the above, escheat to the state
A
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
17
Q
INTESTATE SUCCESSION
Special Cases
Adopted Children
As to Adopting Family – Adopted Child Treated Same as Natural Child
A
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
18
Q
INTESTATE SUCCESSION
Special Cases
Adopted Children
As to Natural Parents – All Inheritence Rights Cut Off
EXCEPTION – Death of A Natural Parent
A
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.
19
Q
INTESTATE SUCCESSION
Special Cases
NonMarital Children – Child of Mother for Inheritance Purposes in ALL cases.
Inheritance Rights As to the Natural Father
A
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 .
20
Q
INTESTATE SUCCESSION
Special Cases
Half Bloods
A
Halfbloods are brothers and sisters who have only one common parent
H -------- W --------------------H2
| |
A B C
21
Q
INTESTATE SUCCESSION
Special Cases
Half Bloods
Half Bloods Take Half as Much as Whole BLoods
A
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.
22
Q
INTESTATE SUCCESSION
Special Cases
Half Bloods
Half Bloods Take Half as Much as Whole BLoods
Distinction Applies Only to Inheritance by Collateral Kin
A
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
23
Q
INTESTATE SUCCESSION
Disinheritance
A
A will provision that expressly disinherits an heir is INEFFECTIVE IF the testator dies partially intestate.
It will pass accordingly to intestate.
24
Q
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
A
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”
25
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.
26
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
27
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
28
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
29
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.
30
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.
31
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.
32
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.
33
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.
34
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
```
35
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
36
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
37
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
38
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.
39
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)
40
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.
41
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.
42
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
43
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.
44
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
45
EXECUTION OF WILL
Formal Requirements
Self-proving Affidavit
Serves as substitute for court testimony of attesting witnesses
sworn testimoney -- no further proof needed
46
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 *********
47
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
48
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
49
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
50
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
51
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
52
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.
53
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
54
REVOCATION OF WILLS
Revocation by Operation of Law
Revoked partially or totally by marriage, divorce, annulment or birth or adoption of children
55
REVOCATION OF WILLS
Revocation by Operation of Law
Marriage Following Execution of Wills -- Pretermitted Spouse Takes Intestate Share
If a person marries after executing a will and the spouse survives the testator, the new spouse takes an intestate share of the testator's estate as a pretermitted spouse
56
REVOCATION OF WILLS
Revocation by Written Instrument
Instrument of Revocation Must Be Executed With Testamentary Formalities
A will or any part thereof may be revoked or altered by subsequently written will, codicil or other writing declaring such revocation or alternation as long as the instrument is executed with the SAME FORMALITIES AS ARE REQUIRED FOR THE EXECUTION OF THE WILL.
57
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
A will or codicil can be revoked by burning, learning, canceling defecting obliterating or destroying with intent and for the purposes of revocation
58
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Revocation by Proxy Permitted
FL permits a will to be revoked by physical act by another person, provided that revocation is
(i) at testators' direction and
(ii) in testator's presence
59
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Presumptions as to Revocation
(1) Will not found after testators Death
if last seen under testator's possession / control (only)
(2) Will found after death in mutilated condition
if last seen under testator control/possession and then found in mutilated condition
***(3) "substantial Evidence" needed to overcome presumption of revocation
to overcome the presumption of revocation raised, evidence of a competent and substantial nature is required. Alleged statements of the decedent are INSUFFICIENT by themselves to rebut the presumption.
60
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Presumptions as to Revocation
No Partial Revocation by Physical Act in FL
Crossing out in a will is disregarded if done AFTER SIGNED
IF done before, gift not part of will when executed
61
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Effect of Revocation on Other Testamentary Instruments
Duplicate Wills
Revoking either copy revokes will
62
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Effect of Revocation on Other Testamentary Instruments
No Revival of Revoked Wills
Once a will is revoked by language of revocation contained in a later will, it is legally dead and cannot be revived unless the will is (i) RE-EXECUTED with the necessary formalities or (ii) REPUBLISHED by executed a NEW codicil to the will.
Merely destroying the later will and language of revocation there does not revive the earlier will
63
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Effect of Revocation on Other Testamentary Instruments
Revocation fo Will Revokes all Codicils
The revocation o a will revokes ALL codicils to that will
64
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Effect of Revocation on Other Testamentary Instruments
Effect of Revoking Codicil
The revocation of a codicil to a will does not revoke the will, and in the absence of evidence to the contrary it is presumed that in revoking the codicil the testator intended to reinstate the will provisions changed by the codicil as though the codicil had never been executed
65
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Lost or Destroyed Will -- Contents Must be Clearly and Distinctly Proved
Lost in fire or cannot be located after death, but presumption of revocation raised is overcome by proof that the testator did not intent to the revoke the will
FL permits probate of a lost or destroyed will provided that a strict evidentiary test is met. The specific content of the will must be provided by the testimony of two disinterested witnesses, or if a correct copy is provided, by 1 disinterested witness
66
REVOCATION OF WILLS
Revocation by Physical Act
Requires Physical Act and Intent to Revoke
Lost or Destroyed Will -- Contents Must be Clearly and Distinctly Proved
Correct Copy must be Photocopy or Carbon Copy
a correct copy means a photo copy or carbon copy of the will itself.
a draft copy of the will from which only a few minor changes were made in prep of the final is NOT allowed.
67
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Lapsed Gifts and Anti Lapse Statutes
Gift Lapses If Beneficiary Predeceases Testators
FL Anti Lapse Statute (Only to Blood)
Applicable if pride easing beneficiary was in a specified degree of relationship to the testator AND left descendants who survived the testator
A predeceasing beneficiaries surviving descendants will take his share PER STIRPES if:
(i) the beneficiary is a GRANDPARENT OR DESCENDANT OF A GRANDPARENT OF THE TESTATORY; and
(ii) the beneficiary is dead when the will is executed, fails to survive the testator, or is required by the will or by operation of law to be treated as having predeceased the testator.
68
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Lapsed Gifts and Anti Lapse Statutes
Gift Lapses If Beneficiary Predeceases Testators
FL Anti Lapse Statute (Only to Blood)
Anti Lapse Statute Does Not Apply if Contrary to Provision in Will
The FL statute applies unless a contrary intention appears in the will. Words of survivorship (eg "if he survives me" or "to my surviving children" are sufficient indication of such intent.
69
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Class Gifts
Class Gift Rule - Class Members who Survive Testator Take Gift
STAYS AT CLASS LEVEL
Class-- Children, brothers and sisters
Always remember anti lapse statute only applies to blood here
70
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
When specifically bequeathed property is not in the testator's estate at death (destroyed, sold given away lost), the bequest is addend, it fails.
71
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Applies to SPECIFIC DEVISES AND BEQUESTS
Admeption only applies to specific devises and bequests . A specific legacy is a gift of property that is designated and is to be satisfied only by the receipt of the particular property described
72
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Partial Ademption
Pro tanto adempiton applies when the testator devisees a large tract of land, then sells a portion of the tract. Ademption applies to the portion of the property not in the estate, but the remaining portion in the estate at the testators death passes to the beneficiary.
73
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Ademption Does NOT Apply to GENERAL OR DEMONSTRATIVE LEGACIES
General Legacy
$$$$ Gift
A bequest of dollar amount that is payable out of the general assets of the estate WITHOUT A CLAIM ON ANY PARTICULAR SOURCE OF PAYMENT '
"i bequeath 5K to my cousin Sam.
74
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Ademption Does NOT Apply to GENERAL OR DEMONSTRATIVE LEGACIES
Demonstrative Legacy
A demonstrative legacy is a gift of a general amount that identifies a particular asset as the primary source of payment
"I bequeath 10K to my niece nanny to be paid out of the proceeds of my google stock"
75
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Ademption Does NOT Apply to GENERAL OR DEMONSTRATIVE LEGACIES
General Legacy
Bequests of Securities - Special Rules Apply
Courts will construe a bequest of securities as a general legacy if it is possible to do so in order to avoid application of the ademption doctrine. cases turn on whether the testator made a gift of "300 shares" or "my 300 shares"
76
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Ademption
Ademption Does NOT Apply to GENERAL OR DEMONSTRATIVE LEGACIES
FL LAW - Ademption Does NOT Apply to The Following
(1) Where testator incapacitated and guardian appointed
If specifically devised property is sold by a guardian, or if a condemnation award or insurance proceeds are paid to the guardian as a result of the condemnation, fire or casualty,y the specific beneficiary is entitled to a general legacy equal to the net sale price, condemnation award, or insurance proceeds. However, the above rule does not apply if after the sale, condemnation or casualty it is adjudicated that the testators disability has ceased and the testator survives the adjudication by one year.
(2) certain proceeds to extent unpaid at testators death -- a specific devisee has a right to:
(i) any BALANCE OWING to the testator because of the SALE OF THE PROPERTY under a contract that is still executory at the testator's death
(ii) any amount of a CONDEMNATION AWARD for the taking of property by eminent domain - but only to the extent that the award is unpaid at the testator's death
(iii) any PROCEEDS FROM FIRE OR CASUALTY INSURANCE on the property- but only to the extent that the insurance proceeds are unpaid at the death of the testator
(iv) property owned by the testator at her death as a result of FORECLOSURE or obtained in leau of foreclosure of the security for a specifically devised obligation
77
CHANGES IN BENEFICIARIES AND PROPERTY AFTER WILLS EXECUTION
Stock Splits and Stock Dividends
A specific devisee of stock is entitled to any additional or other securities of the entity owned by the testator because of action initiated by the entity (merger, consolidation, etc) or which were purchased under dividend reinvestment plan , other than securities acquired by the exercise of purchase options
78
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Protection of the Spouse -- Elective Share Statute
Protects spouse from disinheritance.
Gives the spouse the election to take a statutory share of the estate in lieu of taking under the decedent's will. In FL, the elective share is 30% OF THE ELECTIVE ESTATE, which is based on the augmented estate. It's IN ADDITION TO the spouse's right to exempt property, a family allowance and homestead.
79
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Protection of the Spouse -- Elective Share Statute
Procedure for Making Election
Election must be filed on or before the earlier of the date that is (i) 6 MONTHS after the service of a copy of the NOTICE OF ADMINISTRATION on the surviving spouse or an attorney in fact or guardian of the property of the surviving spouse; or (ii) TWO YEARS AFTER the decedent's death
80
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Protection of the children - Pretermitted Child Statute
A testator may disinherit her children.
Pretermitted child statutes are not intended to address that issue but are designed to protect children from being ACCIDENTALLY OMITTED FROM THE WILL.
PRETERMITTED CHILD TAKES WHAT SIBLINGS TAKE
VIA INTESTATE SHARE
In making up the child's share the general rules of abatement apply. Thus, in the ordinary case, the pretermitted child's share comes out of the residuary estate.
81
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Protection of the children - Pretermitted Child Statute
EXCEPTIONS
Child Intentionally Omitted
The pretermitted child does not take under the statute if it "appears from the chill that the omission was intentional"
82
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Protection of the children - Pretermitted Child Statute
Applies ONLY to children born or adopted after the wills execution
Applies ONLY to children born or adopted after Wills execution -- NOT to ALL omitted children, including those alive at the time the will was executed
83
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Article X section 4 of the FL constitution terms certain property as "homestead" thereby protecting it from creditors of the owners. Restraints are also placed on the devise of homestead property away from a spouse or minor child.
84
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Homestead Property
Inside a Municipality -- 1/2 Acre Limitation
If the homestead is located inside a municipality, it may extend to one-half acre of contiguous land and is limited to the residence of the owners.
85
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Homestead Property
Outside a Municipality -- 160 Acre Limitation
If the homestead is located outside a municipality, it is protected to the extent of 160 contiguous acres, including improvements.
86
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Restraints on Devise
The restraints on devise of homestead property apply only to SOLELY owned property.
Real property owned by the decedent AND a surviving spouse as tenants by the entirety or joint tenants with right of survivorship is NOT homestead property --- it passes by right of survivorship. A devise includes a disposition by trust of that portion of the trust estate which, if titled in the name of the settlor of the trust, would be the settlor's homestead.
87
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Restraints on Devise
Spouse or Minor Children Survive (and in 1 spouse name)
Homestead may not be devised if the owner is survived by a spouse or minor child..
They receive life estate to lineal descendants tenancy in common.
88
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Restraints on Devise
No Minor Children Survive (and in 1 spouse name)
If the owner is not survived by minor children, the homestead may be devised to the owner's spouse in fee simple absolute.
The testator CANNOT devise a life estate to the spouse with a remainder in another, any attempt to do so will fail.
89
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Restraints on Devise
No Spouse or Minor Children Survive (and in 1 spouse name)
If no spouse or minor children survive, the homestead may be devised to whomever the owner chooses.
90
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Homestead
Descent of Homestead Property
A Spouse May Elect to Take One Half Interest in Homestead Property
In lieu of a life estate, the surviving spouse (or w court approval) may elect to take an undivided one half interest in the homestead as a tenant in common, with the remaining undivided one-half interest vesting in the descendants surviving at the time of the decedent's death, per stirpes. The election MUST be filed within 6 MONTHS after the decedent's death and driving the surviving spouse's lifetime. The election - once made - is IRREVOCABLE.
91
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Family Allowance - FL
Up to 18 K
For: Decedent's Surviving Spouse and (Dependent Lineal Heirs) Minor Children
92
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Family Allowance - FL
Payment is to Surviving Spouse if Living
The allowance is PAID TO THE SPOUSE, if living, for the use of the spouse and the dependent lineal heirs
If the dependent lineal heir is not living with the spouse, the family allowance MAY BE APPORTIONED.
93
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Family Allowance - FL
Must PETITION FOR FAMILY ALLOWANCE
Not automatic
The spouse or lineal heir must petition for the allowance -- which is ordered after notice and a hearing
94
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
Exempt Personal Property Set Aside
The Surviving spouse of a decedent who was domiciled in FL at the time of his death is entitled to the items of tangible personal property listed below. These items are IN ADDITION TO amounts passing to the spouse under the decedent's will, by intestate succession, or under the elective share. If there is no surviving spouse, these items are set aside for the decedent's children provided that at least 1 child is a minor The items are exempt from ALL claims against the estate except perfect security interests thereon.:
(1) furniture and furnishings -- up to 20K
(2) personal motor vehicles - no limit on value
the spouse is entitled to two motor vehicles, each of which may not exceed 15LBs, held in the decedent's name and regularly used by the decedent or members of the immediately family as personal motor vehicles. the spouse is not entitled to motor vehicles used in the decedent's trade or business.
(3) prepaid college programs
The spouse is entitled to all qualified tuition programs authorized by the internal revenue code, including FL prepaid college tuition trust fund advance payments contracts and participation agreements
(4) exempt property excluded
exempt property is excluded from the value of the decedents estate before residuary, intestate, pretermitted or elective shares are determined
(5) set aside not available if property specifically bequeathed
Property that is specifically bequeathed by the decedent's will is not subject to the exempt property set aside
(6) Must petition within 4 MONTHS of Service of Notice of Administration
If a petition for an exempt property set aside is not filed within 4 months after service of notice of administration, or within 40 days after termination of any litigation involving the will, the spouse is deemed to have waived her right to exempt property
95
RESTRICTIONS ON POWER OF TESTATION -- PROTECTION OF THE FAMILY
When Spouse Disqualified From Exercising Spousal Rights
A husband or wife who is found to have procured a marriage to the decedent by FRAUD, DURESS, OR UNDUE INFLUENCE is NOT A SURVIVING SPOUSE for the purposes of (i) inheritance by intestacy or as a pretermitted spouse; (ii) the right of election to take a statutory share; (iii) the right to claim homestead, a family allowance or exempt personal property; and (iv) preference in appointment as personal rep.
Additionally the spouse is not entitled to rights or benefits under a life insurance policy, will, trust or power of appointment UNLESS SPECIFICALLY NAMED in the contract or document .. Any such property that would've passed to the spouse instead passes as though the disqualified spouse predeceased the decedent
96
WILL CONTESTS
Time in Which Willl Contest Must Be Filed
Must file WITHIN 3 MONTHS after Service
An interested person on whom notice is served must file any objection that challenges the wills validity, venue or the courts jurisdiction on or before the date that is 3 months after the date of service of the notice of administration. Objections not filed within that time period are forever barred.
97
WILL CONTESTS
Testamentary Capacity
Mental Capacity (3 requirements)
To have the mental capacity to make a will, the testator must have sufficient capacity to be able to understand:
(i) the nature and extent of her property
(ii) the persons who are the natural objects of her bounty; and
(iii) the nature of the disposition she is making, i.e., a general understanding of the practical effect of the will as executed
98
WILL CONTESTS
Undue Influence
A will is invalid if it is obtained through the exercise of undue influence. However, mere pleading, cajoling, nagging or threatening the testator DOES NOT constitute undue influence. Influence is not undue unless the free will of the testator is destroyed and the resulting testamentary disposition reflects the desires not of the testator but rather of the party exerting undue influence
99
WILL CONTESTS
Undue Influence
A will is invalid if it is obtained through the exercise of undue influence. However, mere pleading, cajoling, nagging or threatening the testator DOES NOT constitute undue influence.
Influence is not undue UNLESS the free will of the testator is destroyed and the resulting testamentary disposition reflects the desires not of the testator but rather of the party exerting undue influence
100
WILL CONTESTS
Undue Influence
Requirements
To establish undue influence, the CONTESTANTS, who have the burden of the proof, must establish that:
(i) INFLUENCE was exerted against the testator;
(ii) the EFFECT of the influence was to overpower the mind and free will of the testator and
(iii) the PRODUCT was a will that would not have been executed but for the influence
101
WILL CONTESTS
Undue Influence
Presumption of Undue Influence
Confidential Relationships
A presumption of undue influence arises if a person:
(i) occupies a CONFIDENTIAL RELATIONSHIP with the testator,
(ii) is ACTIVE IN PROCURING THE WILL, and
(iii) is a SUBSTANTIAL BENEFICIARY thereunder.
To Rebut the presumption: the party must come forward with a reasonable explanation of his active role in the wills preparation and execution. A must higher degree of proof is required to overcome the presumption if the testator is shown to have had impaired mental powers or clouded intellectual that when the testator is mentally strong and in good health.
102
WILL CONTESTS
Fraud
When the execution of a will or the inclusion therein of a particular gift is the result o fraud the will or the particular gift is invalid
103
WILL CONTESTS
Fraud
Defined as Willful Deceit
Indirect Fraud May Invalidate the Will
Although generally the fraud must be intended to influence the execution or content of a will, deceit directed at some other objective may have incidentally infused the will as well. Thus a fraudulently induced marriage may to have been intended to procure a will, but a court may find the will resulting from the marriage is a fruit of the original fraud and must fail
104
WILL CONTESTS
Fraud
Defined as Willful Deceit
Testator Must in Fact Be Deceived
Fraud invalidates a will only if the testator was in fact deceived by an act in reliance n the misrepresentation. In other words, a gift is invalid if the testator would not have made it had she known the true facts.
105
WILL CONTESTS
Fraud
Fraud in the Execution (Fraud in the Factum)
In the case of fraud in the execution, there is a misrepresentation as to the nature of the contents of the instrument
Example
A tells T that the instrument is T's will, but in fact, A has substituted a will containing different provisions.
106
WILL CONTESTS
Fraud
Fraud in the Inducement
In the face of fraud in the inducement, the testator intends to execute the instrument as her will and to include the particular contents of that instrument, but she is fraudulently induced to make this will or some particular gift therein by misrepresentations as to the fact which influence her motivation. The will or the particular gifts affected by the fraud must be set aside.
Example
Where Lilly tells T that his son Isaac is dead, it may be uncertain whether the new will, leaving everything to Lilly, was induced by the belief that Isaac was dead or whether the will would have been made in the same fashion has T known that Isaac was still alive T might wish ti exclude Isaac, from whom he had not heard in many years, in favor of Lilly, who had remained a dutiful daughter.
Such situations are resolved by inferences drawn from the family circumstances and other extrinsic evidence (excluding Ts oral declarations) as to what Ts probable intent was.
107
WILL CONTESTS
Mistake
If an interested party proves BY CLEAR AND CONVINCING EVIDENCE that a will provision was based on a mistake of fact or law, the court will reform the will to reflect the testator's intent -- even if the language of the will is ambiguous. The court will consider evidence relevant to the testator's intent even if it contracts the apparent plain meaning of the will.
108
WILL CONTESTS
Mistake
Mistake as to Contents
Mistaken Omission
Extrinsic evidence may be admissible under the FL statute to show that a provision was mistakenly omitted from a will or that a provision contained in the will is not what the testator intended. If proven by CLEAR AND CONVINCNG EVIDENCE the will will be reformed
109
WILL CONTESTS
Mistake
Mistake as to Contents
Ambiguity
Under FL, evidence that a will provision is the result of a mistake of fact or law is always admissible, and if proven, will result in reformation of the will
110
WILL CONTESTS
Mistake
Mistake as to Revocation
Under certain circumstances, a constructive trust may be imposed (or the will may be reformed) when the testator mistakenly believed that he had effectively revoked a will or codicil
111
WILL CONTESTS
No Contest Clauses ("in terrorem"clause)
FL - No Contest Clauses are Unenforceable
In FL, a provision in a will purporting to penalize a person for contesting the will or instituting other proceedings relating to the estate is unenforceable.
Rationale: litigation relating to the validity of a will should not be discouraged by a no contest clause.
112
PROBATE AND ESTATE ADMINISTRATION
The Probate Process
Presumption of Death
Death of the decedent is a perquisite to probate jurisdiction. This raises a potential problem if a person is missing and there is no evidence whether she is dead or alive. To address this, in FL, a person is presumed to be dead if:
(i) she is absent from the place of her last known domicile for 5 continuous years; and
(ii) the absence is not satisfactorily explained after diligent search and inquiry .
The persons death is presumed to have occurred at THE END of the five-year period, unless there is evidence that it occurred earlier.
113
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Who is Entitled to Serve as PR?
Testate Estate (Decedent Left Will)
If the decedent life a will, the order of preference is :
(i) the person NOMINATED IN THE WILL,
(ii) the person SELECTED BY THE MAJORITY IN INTEREST of the persons entitled to the estate, and
(iii) a DEVISEE under the will.
General RULE -- Person Named in Will Must Be Appointed
A testator has the right to name the person who shall administer her estate. Ordinarily, the court has no discretion but to issue letters testamentary to the person nominated in the will, unless the person is disqualified by statute. Strained relationship and hostility between the designated person and the will beneficiaries do not justify overriding the testator's wishes, nor does evidence that the person objecting to the appointment is better qualified
Exception for Unforeseen Circumstance
An exception to the general rule is made if, after the will is executed, unforeseen circumstances arise act would have affected the testator's decision has she been aware of the circumstances. If the testator had no reasonable opportunity to change the designation (she had become incapacitated), the court may refuse to appoint the nominated person.
114
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Who is Entitled to Serve as PR?
Intestate Estate
If the decedent did not leave a will, the order of preference is:
(i) the SURVIVING SPOUSE;
(ii) the person SELECTED BY A MAJORITY IN INTEREST OF THE HEIRS;
(iii) the HEIR NEAREST IN DEGREE OF KINSHIP to the decedent
115
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Qualifications to Act as PR?
A person qualified to be a PR if he is 18 or older, has mental capacity, has never been convicted of a felony, and is a RESIDENT of FL.
FL and federal banks, savings and loans, and other trust companies authorized to exercise fiduciary powers also may serve as PR in FL
116
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Qualifications to Act as PR?
Nonresident -- Must be Relate to the Decedent
The only nonresidents who are qualified to serve as PR are (i) a grandparent or descendant of a grandparent of the decedent, (ii) an adopted child or adoptive parent of the decedent, (iii) the decedents spouse or a person related by lineal consanguinity to the decedent's spouse (parent, grandparent, child, grandchild) or (iv) a spouse of any of the foregoing persons.
This list includes decedent's brother or nephew but NOT A BROTHER IN LAW or a NEPHEW of the decedent's wife.
117
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Duties of the PR
*Duty to secure assets and preserve estate
PR must take all steps reasonable necessary for the management, protection and preservation of the estate and may be required to insure uninsured assets of the estate (Preserving Homestead Property)
*Duty to keep assets separate
No commingling assets
*Duty to file inventory
Inventory of property of the estate, listing each item and its estimated fair market value as of date of decedents death -- including Safe Deposit Box Inventory within 10 days after box opened w entry record (6 months before date of death), signed by each person who was present at opening and verified its contents
*General Duty of PR -- Overall Standard of Care
General Standard of care identical to that of a trustee. If he has special skills or is named personal rep on the basis of representation of special skills or expertise, he is under a duty to use those skills
118
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
Powers of PR
Power to Sell Real Property
Court Approval Not Required if Will Grants Power of Sale
If the decedent's will confers a power of sale, the PR may sell, mortgage, or lease real property without court approval and without showing that the sale is necessary. The sale can be for cash or on credit and ca be secured or unsecured.
119
WILL CONTESTS
Qualifications, Duties, Powers and Liabilities of Personal Representatives
PR Entitled to Reasonable Compensation
PR entitled to a commission for ordinary services payable from the estate assets. The commission is computed as a percentage of the probate estates value as determined finally for probate inventory purposes, including all property, real or personal, tangible or intangible, and all income earned thereon. The applicable percentage decreases as the value of the probate estate increases.
(Typically 3%)
120
WILL CONTESTS
Creditors' Claims
Order of Payment
Insolvent estates are paid to creditors in the following order:
Class 1 - costs, expenses of administration ,compensation of PR and their attorney's and attorney's fees awarded from the estate
Class 2 - personable funeral, interment and grave marker expenses not to exceed 6K
Class 3- debts and taxes with preference under federal law, medicaid claims, and claims in favor of the state for unpaid court costs fees or fines
class 4- reasonable and necessary medical and hospital expenses of the lsat 60 days of the last illness of the decedent
class 5 - family allowance
CLass 6-8 detailed pg 69 wills -- unlikely tested
121
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be FIled
Time within which a claim must be filed depends on whether the creditors claim was reasonably ascertainable
90 days
122
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be FIled
Publication of Notice to Creditors
The PR must "promptly" publish notice to creditors (ONCE A WEEK FOR TWO CONSECUTIVE WEEKSS) in a newspaper published in the county where the estate is being administered (if no newspaper is published in the county, in a newspaper of general circulation in the county)
Notice must contain:
(1) Decedent's name
(2) The court in which the proceedings are pending
(3) whether the estate is testate or intestate (and if tests the date of the will and any codicils)
(4) the estates file number
(5) the name and address of PR and her attorney (and that the fiduciary lawyer client privilege applies to the PR and any attorney employed by him)
(6) and the date of first publication
The notice must require all interested persons to file any objection to the proceeding and all creditors to file claims against the estate during the times set out below
123
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be Filed
Personal Service Required as to Known and Reasonably Ascertainable Creditors
The personal rep must make a diligent search to determine the names and addresses of the decedents creditors WHO ARE REASONABLY ASCERTAINABLE and must personally SERVE A COPY OF THE NOTICE of administration on these creditors within 3 MONTHS after the first publication of the notice.
124
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be Filed
Must File Before the Later of 3 Months after Publication or Thirty Days after Service
A creditor who was served with a copy of the notice of admin MUST FILE its claims with the court before the later of :
(i) 3 months after the date of FIRST publication of the NOTICE of administration, or
(ii) 30 days after the date of SERVICE of the notice
Unknown and unascertainable creditors must file their claims within 3 months after the date of first publication of the notice.
Claims not filed within the foregoing period are FOREVER BARRED
125
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be FIled
Caveats ("Warning w Court) - Who? And When?
ANY INTERESTED PERSON who is apprehensive that an estate, either testate or intestate, will be administered or that a will may be admitted to probate without his knowledge may file a caveat with the court.
A NONCREDITOR may file a caveat BEFORE OR AFTER the death of the person for whom the estate will be or is being administered. A CREDITOR may file a caveat ONLY AFTER the persons death.
126
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be FIled
Caveats ("Warning w Court) - What must it contain?
Must contain:
(i) a statement of the interest of the caveat or in the estate;
(ii) the name and last 4 digits of the SS number or year of birth of the person for whom the estate is being, or will be administered, if known, as ID; and
(iii) the name and specified residence address of the caveat or (if the caveat or -- other than a state agency -- is a nonresident of the county, the name and address of a county resident or of a member of the FL Bar residing in FL, designated as the agent of the caveat or, upon whom service may be made)
127
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be FIled
NO Exoneration of Liens UNLESS the Will Directs Exoneration ( FL)
Liens on specifically devised property are NOT exonerated unless the will directs exoneration. Moreover, a general direction in the will calling for the payment of the decedent's debts is NOT to be considered an expression of intent that liens be exonerated.
Dad's will -- specifically says to pay off mortgage on azure property (750K)
128
WILL CONTESTS
Creditors' Claims
Time Within Which Creditor's Claim Must be Filed
Abatement of Legacies
Order of Abatement
Absent a contrary will provision (T can always specify a different formula for abatement), legacies and devises abate in the following order without preference or priority between real and personal property: (FROM TOP TO BOTTOM)
(i) property passing by intestacy (if the decedent left a will, this provision would be brought into play if she died partially intestate, i.e., if her will did not make a complete disposition of her estate)
(ii) residuary devises and bequests
(iii) property not specifically or demonstriavely devised (general legacies) and
(iv) specific and demonstrative gives
To the extent the property from a demonstrative gift was to be satisfied is insufficient, the gift is treated as a general legacy for abatement purposes.
129
WILL CONTESTS
Special Forms of Administration
Summary Admin for Estates of 75K or Less
Summary admin available when the value of the entire estate subject to admin in fl, less the value of property exempt from the claims of creditors (homestead, life insurance contracts), does not exceed 75K OR the decedent has been dead for more than 2 years.
In a testate estate(will), it is also required that the will not direct formal administration. (If will says do formal admin, must do formal admin)
130
WILL CONTESTS
Special Forms of Administration
Disposition of Personal Property Without Admin
No admin required or formal proceedings instituted upon the estate of a decedent who leaves ONLY PERSONAL PROPERTY, the value of which does not exceed the sum of exempt property, reasonable funeral expenses, and reasonable and necessary medical and hospital expenses of the last 60 days of the decedent's last illness.
The proceeding is not mandatory upon the court, and if the court determines that there is not need for admin, it can decline to allow the parties to proceed with this procedure. Any person firm or corporation paying delivering or transferring property under the above authorization of he court is forever discharged from liability for his actions
131
WILL CONTESTS
Special Forms of Administration
Ancillary Administration
If a NONRESIDENT dies leaving assets in FL, an ancillary admin is NECESSARY.
132
WILL CONTESTS
Special Forms of Administration
Ancillary Administration
Appointment of PR
If the Domicilary PR is qualified to act in FL, he will be issued ancillary letters of admin. Otherwise, court appoints altnerate.
133
WILL CONTESTS
Special Forms of Administration
Ancillary Administration
Requirements for FL Probate
Ancillary admin is commenced as provided by FL Probate code. If the will and any codicils are executed as required by FL laws, they will be admitted to probate.
Unless creditor claims are otherwise barred, the ancillary PR must publish and serve a notice to the creditors according to the requirements of chapter 733 of FL Probate code.
134
WILL CONTESTS
Special Forms of Administration
Ancillary Administration
Distribution of Personalty
Personalty located in FL, although subject to ancillary admin, is controlled by the law of the decedent's domicile, unless the testator provides in his will that the testamentary disposition of such property shall be governed by FL law.
