Florida Wills Flashcards
Definitions > Intestate v. Testate
Testate: Died with a valid will
Intestate: Died without a will or an invalid will
Definitions >
1) Lineal Heirs (lineal ascendants + lineal descendants)
2) Collateral Heirs
Lineal Heirs: A person that stems from one another in a general line that includes the descendants.
Lineal ascendants: Father, mother, grandparents
Lineal descendants: Children, grandchildren, etc.
Collateral Heirs: Stem not from one another but from a common ancestor.
examples: siblings, cousins, aunts, uncles
Per Stirpes Distribution
Florida is a strict per stirpes jurisdiction.
Stirpital shares are always determined at the first generational level, even if there are no living takers at that level. Each branch of the family will receive an equal share, even if the first person in the branch is deceased.
Per Stirpes:
- 1) Divide the estate equally according to the total number of descendants alive or dead (with descendants)
- 2) If descendant taker is dead, their stirpital share passes down to their descendants equally.
per stirpes – “by the roots” of the family tree
Intestate Succession
Spouse
- A legally married partner.
- Includes couples who are sperated but not legally divorced.
Spouse’s Share
- ALL or HALF – (one big happy family concept)
The surviving spouse takes it ALL if:
- Decedent is survived by spouse and no descendants, OR
- Decedent is survived by spouse and their shared descendants, and spouse has no other outside descendants.
The surviving spouse takes HALF if:
- Decedent is survived by spouse and descendants from outside of their relationship. (decedent’s or spouse’s)
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the portion of the estate that does not pass to the surviving spouse is distributed to the decedents heirs in the following order:
DESCENDANTS (ISSUE) - Per Stirpes
- Adoption– children inherit from decedent just like biological children. Severs the child’s relationship with his/her natural parents.
- Step-children – unless they are adopted by decedent, not entitled to intestate share.
- Virtual Adoption – was going to be adopted but never legally was. Can inherit like adopted child (above)
- Posthumously Born Children - concieved before death but born after. Treated as being born during decedent’s lifetime.
Parents - if no descendants, to the parents in equal shares. If only one surviving parent, then all to the one surviving parent
Siblings and their descendants - if no descendants or parents, then to siblings, per stirpes. (their descendants too)
Grandparents and their descendants - If the decedent has no surviving descendants, parents, or siblings or their descendants, then the estate passes 1/2 to the decedent’s PATERNAL kindred and the other 1/2 to the decedent’s MATERNAL kindred in the following order:
- to the decedent’s grandfather and grandmother and their descendants.
- if neither grandparent survives, then to the grandparents’ descendants (e.g., decedent’s aunts, uncles, cousins), per stirpes.
- If there is either no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
Kindered of last deceased Spouse - If no grandparents or descendants of grandparents, then the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
If none of the above, property escheats to the state
Intestate Succession > Half-Bloods
Half-bloods are brothers and sisters who share only 1 parent in common
Rule: When intestate property descends to collateral heirs, like brothers and sisters, the collateral heirs that are half-bloods will take half as much as whole bloods.
[D]— A (whole) —B (whole) — C (half)
A: 2 parents in common w/ D
B: 2 parents in common w/ D
C: 1 parent in common w/ D
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5 total (denominator)
distribution:
A – 2/5
B – 2/5
C – 1/5
numerator is the number of parents in common
EXECUTION OF WILLS
Formal Wills – Florida is a strict compliance state. Three formal execution requirements:
- Signed Writing
- Wtnesses (attestation)
- Testementary Intent
1) Writing Signed by Testator
- Writing — Florida does not permit oral wills. This includes audio and video recordings. Even if the will was created in a state that allows oral wills.
- Signature — Signature must be located below the portion of the will that makes the dispositions of property (the “end”) Formal Signature not required. must indicate desire to sign.
- Capacity — Testator must be at least 18 years of age and of sound mind
2) Witnesses
- A will must be signed and attested by at least two witnesses while in the presence of the testator
- No minimum age, need competency to comprehend
- Interested witnesses ar OK = does not affect the validity of the will
- the witnesses do not need to read the will, or even be aware that the document is a will, for the will to be validly executed
presence — heavily tested, know both
- Scope of vision (traditional) – Testator must see or be capable of seeing the witness sign.
- Conscious presence (modern) – Witness or testator must be aware the act is being performed, even if she cannot see it
3) Present Testamentary Intent
- Testator must have the present intent to make a testamentary transfer.
Codicils – Supplements a Will, same formalitites
- A valid codicil can validate an earlier invalid will that is referred to in the codicil with enough certainty to identify and incorporate the will.
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Holographic Wills – Informal, handwritten will with no witnesses
- NOT VALID in Florida, even if it was created in a state that recognizes them.
most tested topic
REVOCATION OF A WILL
Wills can be altered or revoked at any time up until testators death.
- can be revoked in full or in part
Testator must have testamentary capacity
- (is of sound mind, appreciate the nature of the act, ETC.)
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1) Revocation by SUBSEQUENT WRITTEN INSTRUMENT:
- Express Revocation of Prior Will – by a later Will or codicil (executed with formalities)
- Implicit Revocation (i.e, Inconsistency) – Later writing is inconsistent with prior will. May implicitly revoke the earlier will, or part of the earlier will, only to the extent of inconsistent provisions.
2) Revocation by PHYSICAL ACT
- Physical act of destruction AND INTENT – such as burning, tearing, defacing, obliterating, or destroying it WITH THE INTENT AND PURPOSE OF REVOCATION. (mistakenly destroying wrong document is not revocation)
- No Partial Revocation by Physical Act in Florida. You either revoke the entire will or no part of it.
- Deface Should Touch the Text – If attempting to deface by writing something like “void”, it should not be done in a blank space but rather should be across the face of each page and touching the text.
Lost Wills – we know a will exists, cant find it. Creates a rebuttable presumption that testator revoked by physical act.
- First: Burden on the proponent to show will’s existence ( the testator did not revoke the will) by competent and substantial evidence
- IF EVIDENCE SHOWN, then the will can be probated by:
- (i) its specific content is proved by the testimony of TWO disinterested witnesses or
- (ii) an identical (carbon) copy is proved by the testimony of ONE disinterested witness. A draft of a will does not meet this requirement.
3) Revocation by OPERATION OF LAW: This occurs in cases of marriage, divorce, or birth/adoption of children.
Divorce/Annulment—Includes Wills AS WELL AS other life insurance payment or transfer at death
- Revokes All Provisions in Favor of Former Spouse Regardless if marriage was before or after execution, the spouse is treated as having predeceased the testator
- unless (1) the couple remarried and (2) were married to each other when the decedent died.
Pretermitted Spouse— Does not Revoke. Takes Intestate Share unless
- (i) waived (written agmnt, 2 witnesses)
- (ii) Pre-nup dealt with the matter, or
- (iii) testator discloses an intent not to make such a provision
Pretermitted Child — Does not Revoke. Takes Intestate Share (general abatement rules apply) Unless:
- will discloses the omission was intentional
- parent already had a child when the later child was born and the parent’s will gives substantially all the estate to the other parent of the child; or
- If the child received a part of the testator’s property that would be equivalent to a child’s part by way of advancement.
REVOCATION OF A WILL > Special Issues
Third Party Revocation – A third party can revoke on behalf of a testator if:
- at the testators direction; and
- in the testators presence
Revoking Codicils
- By revoking a will, the testator also revokes any codicils attached to the will.
- BUT, If a testator revokes a codicil, the underlying will is revived in its original form. (will w/o codicil)
Republication by Codicil
- Execution of a codicil to a first will that was previously revoked by the execution of a second will revive the first will.
- must expressly mention the first will
- A valid codicil can validate an earlier invalid will that is referred to in the codicil with enough certainty to identify and incorporate the will.
Revival
Republication
- Florida does not recognize automatic revival of a revoked will. Need to re execute first will. (republication)
Dependent Relative Revocation (DRR)
- DRR provides a safety valve for testators who revoke a will on the basis of a mistake.
- The mistake can be grounded in law or in fact.
- DRR invalidates the mistaken revocation and revives the earlier revoked will.
- Goal is to avoid intestate succession.
CONSTRUCTION OF WILLS
TESTATOR DEAD, TRYING TO FIGURE OUT WHAT THEY MEANT IN THEIR WILL
Incorporation by Reference – Will refers to a document outside the will itself. A will may incorporate an extrinsic document that is not testamentary in nature, if:
- 1) The document is in EXISTENCE at the time of execution;
- 2) The testator INTENDS the document to be incorporated into the will; and
- 3) The document is DESCRIBED in the will with sufficient certainty to permit its identification.
Acts of Independent Significance - can dispose of property based on acts or events unrelated to execution of will.
- This doctrine applies to acts that occur in the future (i.e., after the execution of the will).
- That makes it different from both incorporation by reference and republication by codicil, which are about past acts.
Lapse – intended beneficiary does not survive testator. At common law they dump into the residuary.
Florida Anti-Lapse Statute: Provides an alternative disposition for gifts that would otherwise lapse;
- Does not apply if will has alternative devise for lapsed gift.
Beneficiary Requirements:
- 1) Related to testator; AND
- 2) Survived by Descendant
- If requirements met – Goes to beneficiaries descendants
- If requirements are not met, the common law rule applies, and the gift goes to the residuary.
Special rule: Devising Residue to two or more devisees and one of them predeceases the testator.
- Anti-lapse statute applies.
- if the lapsed devisee is NOT covered by anti-lapse statute, the surviving devisee takes the other’s share
Special rules: Class gifts and one person in class predeceases the testator
- Anti-lapse statute applies.
- If the lapsed members is NOT covered by an anti-lapse statute, the surviving class members share the lapsed member’s gift.
1) Order of Devises
2) Abatement
3) Ademption
Devises are distributed in the following order:
1) Specific gift: A gift of a specific piece of property
- “my stamp collection”
2) Demonstrative gift: A general gift from a particular source.
- “$10,000 from my Bank of America account”
- But if the source of a demonstrative devise is insufficient, (only 5K in bank account) then the REST of that DEMONSTRATIVE DEVISE is to be paid out of the GENERAL assets of the estate.
3) General gift: A gift of property satisfied from general assets of the estate
- “$10,000””
4) Residuary gift: Left over
- “the rest of my property”
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Abatement – If the estate does not have sufficient funds to pay debts or make gifts, the gifts will be abated, or reduced, in a specific order. Abatement hierarchy:
- 1) Intestate property (first to be reduced);
- 2) Residuary gift;
- 3) General gifts;
- 4) Specific and Demonstrative gifts
Pro Rata Formula – All devises WITHIN a class generally abate pro rata WITHOUT PREFERENCE or PRIORITY for real or personal property. The formula for determining a beneficiary’s proportional share is:
- (amount beneficiary is supposed to receive from that class) / (the value of all gifts in that class). The beneficiary’s share % is then multiplied by the actual amount available for distribution to determine her pro rata share.
- Example: 25k left in Estate / 20K owed to A; 20K owed to B; 10K owed to N (General Devises)
- Step 1: Add up total gifts in class – 50K (20+20+10)
- Step 2: Find each person’s share – A = 2/5; B = 2/5; C = 1/5
- Step 3: Apply each Share to amount available – A = 10K; B = 10K; C = 5K
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Ademption by Extinction – ademption by extinction applies only to a SPECIFIC devise when the specific piece of property is no longer in the estate at the testator’s death.
- Traditional Rule: The devisee takes nothing.
- FL considers INTENT – Allows intended recipient to take if testator did not intend by disposal of the specific devise to change the testamentary scheme, and the extinct specifically devised property can be traced to existing assets in the testator’s estate
Florida Anti-Ademption Statute – Even if a devise has been adeemed, a devisee is nevertheless entitled to:
- Any remaining balance on the purchase price, together with any security interest owing from a purchaser to the testator at death, by reason of the sale of the property;
- Any amount of unpaid condemnation award at the testator’s death for the taking of the property;
- Any unpaid proceeds at the testator’s death from fire or casualty insurance on the property; and
- Property owned by the testator at death as a result of foreclosure, or obtained in lieu of foreclosure, of the security for a specifically devised obligation.
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Ademption by satisfaction – Applies when a testator satisfies a specific or demonstrative gift, either in whole or in part, by an earlier inter vivos transfer. Not binding on the heir’s successors absent an express statement to the contrary. Requirements:
- The will provides for the deduction of the property;
- The testator declares in contemporaneous writing that gift should be deducted; OR
- Recipient acknowledges in writing that the gift satisfies the devise.
Hotchpotch method:
- Upon the decedent’s death, an advancement’s value—determined at the time the gift is received—is added back into the estate (i.e., hotchpot method).
- The estate’s total value is then divided by the number of taking heirs. The advancement value is then subtracted from the relative’s share.
Educational objective: If an advancement of an heir’s inheritance exceeds the hotchpot share to which each heir is entitled, then that heir does not take but is not required to pay contribution back into the estate.
FAMILY PROTECTIONS > Rights of Surviving Spouse
Rights of the Surviving Spouse
- Social security and pension plans;
- Homestead exemption;
- Personal property set asides;
- Family allowance for reasonable living expenses during probate;
- Elective Share
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Elective Share – (30% of the “elective estate”)
- Instead of taking under a decedent’s will, a surviving may elect to take an elective share, which is 30 percent of the decedent’s elective estate. The elective estate includes:
Elective Estate
- Probate estate;
- Homestead;
- Ownership interest in POD Accounts;
- Concurrent Interests;
- Property subject to revocable transfers and irrevocable transfers;
- net cash surrender value of any Life Insurance;
- Survivor’s pensions;
- Property transfers within 1 year; and
- Transfers in satisfaction of elective share.
Timing of Elective Share – EARLIER of:
- 6 months after service of a copy of notice of administration; or
- 2 years after decedent’s death
Satisfying the share – Unless decedent’s will provides otherwise, share is satisfied as follows:
- Property interests that pass to the spouse;
- Amounts under pensions;
- Decedent’s half of community property;
- Life insurance proceeds;
- Special needs trust for the surviving spouse; and
- Disclaimed property that would have otherwise satisfied the elective share.
- If the share is still not satisfied – the probate court will take from the rest of the estate to satisfy the elective share.
Waiver of the Elective Share
- Written waiver contract; and
- Signed document by waiving party in presence of two witnesses.
- If After the marriage – EACH spouse must make a fair disclosure to the other about that spouse’s estate.
Homestead – There are restrictions on the devise of the property if, at decedent’s death:
- 1) Real Property property owned by decedent;
- 2) Decedent was a Florida resident; and
- 3) The property was the decedent’s residence or residence of the family.
Restrictions – If owner survived by:
- Spouse or a minor child — No devise of the homestead
- Spouse ONLY — Property can only be devised to spouse in Fee Simple
- Spouse + Kid — Spouse takes a Life Estate with a Vested Remainder in the descendants alive at decedent’s death (does not require the descendants to be minors), or Spouse could choose to take an undivided half interest as Tenant-in-Common instead of a life estate, with the remaining undivided half going to the kids.
- The surviving spouse may waive his homestead rights but cannot waive the rights of a minor child. This protection applies even if the surviving spouse or minor child never resided in the decedent’s homestead.
Timing of Election — Surviving spouse has 6 months after decedent’s death; must decide before surviving spouse dies
- Election is irrevocable.
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Property Set Aside – Right to exempt personal property if the decedent was domiciled in Florida at death. Goes first to SPOUSE, then to DESCENDANTS.
Includes
- Contents of the home up to $20,000;
- Two vehicles in decedent’s name and used by family as personal vehicles;
- College account (529), and certain benefits paid to teachers.
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Family Allowance – An additional exemption from the estate designed to support the family as the estate is working through probate
Max amount—Tops out at $18,000, in lump sum or installments
Family allowance does not reduce any share to spouse or heirs, unless the will directs so.
* Key is dependancy – Recipients can be spouse or lineal heirs (not just descendants), so long as the heirs were DEPENDANT on the decedent for support.
Bars to Succession > Slayer Statute
Florida law prohibits any person who unlawfully and intentionally kills (or participates in the killing) from taking as a beneficiary of the victim’s estate.
- Killer treated as if he predeceased the victim.
- Killer’s kids, are NOT cut off. Florida permits them to take an interest.
- Applies to wills, intestate succession, pretermitted family rights, elective share, homestead, personal property set-aside, and family allowance
Standard of Proof: A final conviction of murder in any degree is conclusive proof under Florida statute.
- In the absence of that finding, court can determine by the greater weight of the evidence (i.e., preponderance of the evidence) that the killing was unlawful and intentional for purposes of this rule.
Bars to Succession > Disclaimer of Interests
To disclaim is to reject an interest from an estate.
- Because we presume acceptance, a disclaimer must affirmatively disclaim a gift.
- Why would someone do this? Perhaps to avoid creditors.
Requirements: The disclaimer must:
1) Be in writing identified as a disclaimer;
2) Describe the interest or power being disclaimed;
3) Be signed, witnessed, and acknowledged in the manner provided for deeds to be recorded; and
4) Be delivered or filed.
- Delivery—in person or sent by first-class mail to the person who has legal title to the property. The disclaiming party must obtain a receipt.)
- Filed—with the clerk of the court in any county where venue is proper.)
Timing
- Florida accepts a disclaimer at any time
WILL CONTESTS
Objections to the validity of a will – Only an interested party has standing to challenge a will.
- Someone who will benefit under the will; or
- Someone who would take under intestate succession but is not in the will.
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Testamentary Capacity – The person challenging the will (“the contestant”) bears the burden of proving that the testator lacked the requisite mental capacity at the time of the execution of the will. If proven, whole will is invalid
Whether testator had ABILITY to know (not if he actually knew)
- The nature of the act
- The extent of her property
- The natural objects of his bounty; and
- The effect of the disposition she is making
Insane Delusion – A false belief to which the testator adheres in spite of all reason and evidence to the contrary. if proven, any provsision cause by insane dilusion is void
Evidence
- The belief must be subject to disproof by actual evidence.
Causation
- The contestant must show that the insane delusion was a “but for” cause
of the testamentary disposition.
Will Contests (Cont’d)
Undue Influence – A coercive relationship. If proven, beneficiary is treated as if they predeceaesd testator to the extent that the gift is in excess of the beneficiary’s intestate share.
- The contestant alleges that a 3rd party effectively controlled the testator’s decision-making process.
Required Proof—the contestant bears the initial burden of showing:
- The beneficiary received a substantial benefit under the will;
- The beneficiary had a confidential relationship with the testator
- The testator had a weakened intelect at the time of execution
presumption of undue influence
- If the contestant meets the burden, it creates a presumption of undue influence.
- The burden shifts to the proponent (i.e., the third party) to show by a
preponderance of the evidence that there was no undue influence
Fraud
The contestant bears the burden of showing that the beneficiary engaged in an unlawful misrepresentation at the time of the conveyance.
Elements—the beneficiary made a misrepresentation with:
- The intent to deceive the testator; and
- The purpose of influencing the testamentary disposition.
2 types of fraud
- Fraud in the Inducement – The misrepresentation causes the testator to make a different will than the testator would have otherwise made.
- Fraud in the Execution – A misrepresentation as to the character or contents of the will (belief as to what they are signing)
Marriage procured by fraud, duress, or undue influence
- The cause of action accrues on the decedent’s date of death
- The person challenging the marriage has the burden of establishing by a preponderance of the evidence that the marriage was procured by fraud, duress, or undue influence.
- If ratification of the marriage is raised as a defense, the surviving spouse has the burden of establishing, by a preponderance of the evidence, the subsequent ratification by both spouses.
Remedy
- A constructive trust is the most common remedy for fraud.
Ambiguities
- Patent (On the face of the will)
- Latent (NOT on the face of the will)
- Rule: Florida does not treat them differently. extrinsic evidence is admissible to resolve both kinds of ambiguities.
