florida wills

Question 1

how is it tested

Answer 1

mcq

Question 2

definition: legal heir

Answer 2

a person that stems from another in a generational line that includes the decedent (deceased person)

Question 3

definition: lineal ascendant

Answer 3

• Father, mother, grandparents, etc

Question 4

definition: lineal descendant

Answer 4

• Children, grandchildren, etc
• As used in fl, “Descendant”= lineal descendant will

Question 5

definition: collateral heir

Answer 5

• A person that stems not from another, but from a common ancestor.
• Brothers, sisters, uncles, and aunts are all collateral heirs because they do not stem from you, but rather from a common ancestor

Question 6

per capita at each generation (UPC)

Answer 6

Step 1: Start by dividing the property into equal shares at the first generation where there is a surviving member.

Step 2: Instead of passing a deceased member’s share by representation, however, pool the remaining shares and drop them down to the next generation.

Step 3: Divide equally at the next generation.

Question 7

per capita with representation

Answer 7

1. Divide the property equally at first generation where a member survives the decedent.
2. If there are deceased members at that first generation, their shares drop down to their surviving issue at the next generation.
3. If a deceased member of a generation is not survived by living issue, then that member does not take a share.

Question 8

definition: per stirpes distribution (intestate)

Answer 8

• “by the roots” of the family tree
• Fl is a strict per stirpes jurisdiction. Stripital shares are always determined at the first generational level, even if there are not living takers at that level
• What this means is that each branch of the family will receive an equal share, even if the first person in the branch is deceased

Question 9

disinheritance

Answer 9

Florida does not recognize clauses that attempt to disinherit a legal heir (i.e., an heir under the intestacy statutes).

The only way for a testator to successfully disinherit an heir is to devise all of her property through a will (usually through a residuary clause).

Any property not addressed by the will passes by the intestacy statutes.

Under the statutes, when there is no surviving spouse, the decedent’s descendants inherit equally, per stirpes.

Question 10

intestate succession: definition

Answer 10

• Intestate means the decedent didn’t leave a will
• However, intestate succession laws also apply to property that wasn’t devised or not properly devised in a will
• Example: d owns a boat. D validly devises the house in his will but doesn’t mention the boat. The boat passes to heirs by intestate succession.

Question 11

intestate succession: definition

Answer 11

• Intestate means the decedent didn’t leave a will
• However, intestate succession laws also apply to property that wasn’t devised or not properly devised in a will
• Example: d owns a boat. D validly devises the house in his will but doesn’t mention the boat. The boat passes to heirs by intestate succession.

Question 12

intestate succession: spouse’s share–> when the spouse gets it all

Answer 12

• If there are no descendants of the decedent, the entire estate passes to the spouse
• If there are descendants of the decedent, these descendants are all descendants of the surviving spouse, and the spouse has no other descendants, the entire estate passes to the spouse

Question 13

intestate succession: spouse’s share–> when the spouse gets half

Answer 13

• If the decedent is survived by one or more descendants, any of which is not a descendant of the spouse, the spouse takes one half of the estate
• If the decedent is survived by descendants, all of whom are also descendants of the spouse, but the spouse has descendants that aren’t descendants of the decedent, the spouse gets ½ the estate

Question 14

intestate succession: intestate share of other (non spouse) heirs

Answer 14

• The portion of the estate that doesn’t pass to the spouse, descends in the following order:
  1. To the decedent’s descendant’s per stirpes
  2. If no descendants, then to the parent in equal shares; if there is only one surviving parent, then the parents get the entire estate
  3. If there are no descendants or living parents, then to brothers and sister per stirpes
  4. If there are no descendants, living parent, brother/sister, or descendant of brother/sister, then the state is divided into two and passes to grandparents and their descendants (there. Is more to this, but for now this is all you need to know)
  5. If there are no grandparents or their descendant, then to the kindred of the last deceased spouse
  6. If none of the above, then the property escheats to the state of Florida

Question 15

adopted children and half-bloods: adopted children

Answer 15

• an adopted child is treated the same as a natural born child. they are entitled to inherit from the adoptive parents just like a natural child
• similarly, the adopted parents can inherit from the adopted child
• an adopted child cannot inherit from their natural parents. That relationship is cut off

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An adopted child has no right to inherit intestate property from his birth parents (and vice versa) unless the child is adopted by a:
* spouse of a natural parent (the child may inherit from that natural parent, the spouse, and their respective families)
* spouse of a natural parent after the other natural parent dies (the child may inherit from both natural parents, adopted parent, and their respective families) or
* close relative after the natural parents die (child may inherit from natural parents’ families)

Question 16

adopted children and half-bloods: half-bloods

Answer 16

• When intestate property descends to collateral heirs, like brothers and sisters, the collateral heirs will take half as much as whole bloods
• A= 2 parents, c= 1 parent, d= 1 parent. Total is 4. 4 is your denominator
• The numerator for each heir is the number of parents each has in common with the decedent. THESE ARE THE SAME NUMBERS FROM ABOVE.
• Put the numbers together as fractions (numerator/denominator)
• A= 2/4, c= ¼, d = ¼.

Question 17

uniform simultaneous death act & slayer statute: statutory language- USDA

Answer 17

• “When title to property or its devolution depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived.”
• includes life insurance payable on death accounts
• This means that the property passes as though the heir/beneficiary predeceased the decedent.

However, when real or personal property that depends upon one person surviving another (e.g., a joint tenancy with the right of survivorship) is involved, the simultaneous death law treats the property as if the decedents had owned it as tenants in common.
* each persons 1/2 interest will pass by intestacy/pursuant to their will

Question 18

USDA & slayer statute: applicable in all contexts

Answer 18

• Applies to all distributions of property irrespective of the means of transfer
• It can be via will intestacy, joint tenancy with rights of survivorship, a life insurance contract, etc

Question 19

USDA & slayer statute: time to survive

Answer 19

• In fl, the person need only survive by a microsecond to avoid applying the USDA.

Question 20

USDA & slayer statute: applicability to joint tenancies

Answer 20

• In joint tenancy with rights of survivorship, if the owners die in a manner that the USDA applies, the interests of each are divided equally and administered as such
• There is no evidence about the order of death, so we cant apply the survivorship provision. Instead, we just treat it as tenancy in common with the owners being predeceased

Question 21

USDA & slayer statute: slayer statute

Answer 21

• a person that unlawfully and intentionally kills or participates in procuring the death of the decedent it not entitled to any benefits under the decedent’s will or the probate code
• the estate passes as though the killer had predeceased the decedent
• however, lineal descendants of the killer aren’t prohibited from taking under this statute
• example: son murders father. Son cannot inherit under slayer statute. However, son’s son can inherit.
• You do not need a murder conviction. A conviction for murder is conclusive prof, but without it, you just need to prove by the greater weight of evidence.

Question 22

disclaimer of interests

Answer 22

• a disclaimer is when a beneficiary of a decedent’s property doesn’t wish to receive the property. This is usually done for tax purposes.
• A disclaimer must be in writing, describe the interest or power being disclaimed, be signed, witnessed, and acknowledged in the manner provided for recording real estate deeds and be delivered by recording it in the office of the clerk of the court in the county where the property is located.
• No formal time limits in florida for disclaiming (but right to disclaim can be waived by accepting/using property)
• For federal gift tax purposes, there must be a disclaimer within 9 months of the decedent’s death

Question 23

advancement of share

Answer 23

• An advancement is a gift made to a next of kin with the intent that the gift is an advance of property to be received from the decedents estate.
• If the testator outlives the heir and the heir’s descendants take the intestate estate, the property is not accounted for in computing their share—unless the declaration or acknowledgment specifically binds the descendants. (would say this an advancement for me from my dad, binding my heirs so if i die before my dad, this advancement will count against my heirs)
• In Florida no gift can be considered an advance unless: the will specifically provides for the deduction of the gift, the testator declares in a writing contemporaneous with the gift that the gift should be deducted from the devise, or the recipient of the gift acknowledges in writing that the gift is in satisfaction of the devise.
• the advancement is valued as of the date of the gift
• example: John is advanced a parcel of land worth $50,000 at the time by his mom, but his valued at $80,000 at the time of her death. If she leaves a $200,000 estate, the full value of the estate is $250,000. Each child should therefore receive 125,000 as their share but John already has received $50,000 worth, so he takes only $75,000. The remaining $125,000 goes to the daughter
• 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 back into the estate.

Question 24

wills: definition

Answer 24

• A will is a legal instrument that is
• Executed with certain formalities
• Testamentary in nature
• Revocable during the lifetime of the maker
• Operative only upon the testator’s death

Question 25

wills: codicil

Answer 25

• A codicil is a supplement to a will. It alters, amends, or modifies the will
• A codicil has the same formalities are required by a will
  And a valid codicil may
• alter, amend, or modify an existing will
• republish a will or
• validate an invalid will that is referred to in the codicil with enough certainty to identify and incorporate the will.

Question 26

attestation clause

Answer 26

An attestation clause is a certificate signed by the witnesses reciting the performance of the formalities of execution.

Most wills contain an attestation clause, but it is not a requirement for a validly executed will.

Question 27

wills: intent

Answer 27

• In order for a will to be valid, the testator mustve intended the instruemtn to be his/her will
• This is usually shown on the face of the will itself, “I, john doe, do hereby declare this instrument to be my last will”
• This is a rebuttable presumption of intent

Question 28

wills: testamentary capacity

Answer 28

• Testator must be at least 18 yo or an emancipated minor at the time the will is created
• Testator must be sound of mind at the time of making the will
• Must understand the nature and extent of their property
• Must understand the persons who are the natural objects of her bounty
• Must understand the nature of the disposition- a general understanding of the practical effects of the will

Question 29

wills: formal requirements

Answer 29

• There are 6 requirements for the formal execution fo a will
  1. The will must be signed by the testator or by another person at the testator’s direction and in the testator’s presence
  2. The testator must sign at the end of the will
  3. The testator must sign or acknowledge the previous signature in the presence of a witness
  4. There must be at least 2 witnesses
  5. The witnesses must sign in the testator’s presence
  6. The witnesses must sign in the presence of eachother

note: the witnesses do not need to know that the document is a will AND when the testator creates the will she must INTEND that it have testamentary EFFECT
* not joke or create a deed- like life estate with remainder to someone
* if testator is trying to make a deed, it fails as an inter vivos gift cannot be probated as a will because the grantor intended the deed to be operative during his lifetime.

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Florida and most states permit proxy signatures.

A proxy signature allows the testator to have another person sign the will on the testator’s behalf when done at the direction of and in the presence of the testator.

And the person who signs as a proxy will also be counted as one of the two witnesses Florida requires to validate a will.

so where proxy signs for testator and on signature line says, signed by (the person serving as proxy) and the other witness signs on the witness line, technically there were two witnesses who signed and it is valid

Question 30

Execution of Wills: Formal Wills –> Failure to Satisfy Formalities

Answer 30

common Law (majority rule): strict compliance with will formation formalities

Florida follows the common law view of strict compliance.

Question 31

Execution of Wills: Formal Wills –> Will substitutes

Answer 31

A decedent can avoid probate by transferring property via a will substitute, including:

(1) Joint Tenancy: Avoids probate because it has a right of survivorship;
(2) Revocable Trust: Avoids probate because it is an inter vivos transfer;
(3) Pour-Over Will: Avoids probate because it transfers the testator’s property to a trust to be distributed according to the terms of the trust rather than the testator’s will;
* Florida law allows such a devise, so long as the trust was executed prior to or concurrently with the will
* A pour-over devise is valid even if the trust: is amendable or revocable by any person, was amended or revoked in part after execution of the will or a codicil to the will, or was unfunded (i.e., had no property) during the settlor’s lifetime
* A trust document that is executed as a “pour-over” devise does not need to comply with the formalities required for a will (e.g., be witnessed); it is only necessary that the trust document be executed prior to or concurrently with the will
(4) POD Contract: Avoids probate because it distributes by an inter-vivos transfer
(5) Deed: Avoids probate because it is an inter-vivos transfer.

Question 32

wills: testator’s signature

Answer 32

• Any mark that’s affixed by the testator, with the intent that the mark operate as the testator’s signature, satisfies the signature requirement
• The signature requirement can also be satisfied if another person, at the direction of the testator, signs the will in the presence of the testor and on behalf off the testator
• The signature must be at the “end”, ie it must be subscribed. However, the concept of the “End” is a time and not a place
• Material added to the will after signature is invalid

Question 33

wills: presence requirement

Answer 33

• The will must be signed in the presence of two witnesses and the two witnesses must be present with each other
• florida has no minimum age for a person to witness a will, but must be competent (sufficient ability to observe the signature and comprehend the act)
• A question arises as to the definition of presence
• Fl follows minority view of presence. This is called “Scope of vision” test
• Under this test, presence is determined by whether the person was in such close proximity to the other that he/she could’ve seen the signing had he looked

Question 34

wills: witnesses

Answer 34

• At least 2 witnesses must sign in the presence of the testator and in the presence of each other
• In florida, an interested witness is still a valid witness
• Must have the ability to comprehend the nature of the act of the testator
• No minimum age requirement
• Witnesses will need to testify about the execution of the will in order to prove the will
• This problem can be avoided by a self-proof affidavit
• a will may be made self-provied at the time of its execution or any later date
• A self- proof affidavit permits the will to be self-prooving and thus will not require the testimony of the witness in court, will be admitted to probate without further proof
• In order to self prove the will, the testator and the witnesses must sign the will and then sign a sworn affidavit before a notary public reciting that the testator declared this to be his/her will and that the signature formalities were followed
• The signature on affidavit can count as the required signature on the will

Question 35

wills: holographic & oral wills- validity of foreign wills

Answer 35

• Oral wills aren’t permitted in fl. Wills must be in writing
• A holographic will is a will that is written and signed by the testator, but not signed by any witnesses.
• Holographic wills are not permitted in Florida as they do not contain the requisite number of witness signatures (2).
• but if its all in writing, and then signed by witnesses (following the rest of statutory requirments) it is valid
• wills executed by non Florida residents are valid in Florida so long as they were valid in the state where the testator was a resident.
• Exception: holographic and oral wills are never valid in Florida, estate will pass per stirpes

Question 36

will contests

Answer 36

Objections to the validity of a will

Only an interested party has standing to challenge a will.

interested party:
* An individual has standing to contest a will if the individual would financially benefit should the will be found invalid, which typically is an individual who would inherit under the intestacy law (heir-at-law) of the jurisdiction where the will is probated.
* Under Florida intestacy law, when an individual dies without a surviving spouse or descendants, the decedent’s intestate estate passes to the decedent’s parents equally if they are alive.

if court concludes the testator lacked capacity, entire will is void

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insane delusion

a false belief to which the testator adheres in spite of all reason and evidence to the contrary

evidence: the belief must be subject to disproof by actual evidence

causation: the contestant must show that the insance delusion was a but for cause of the testamentary disposition

effect: if insane delusion proven, any provision caused by insane delusion is void.

Question 37

caveat

Answer 37

• An interested person who wishes to have notice of the administration of an estate, either testate or intestate, or the admission of a will to probate may file a caveat with the court.
• A non-resident may file a caveat in Florida, provided either the caveat is signed by a Florida attorney or a resident of the county in which the caveat is filed is appointed as an agent.
• Although the creditor of a person cannot file a caveat before the death of that person, any other interested party may file a caveat before the person’s death. The caveat is effective for two years after it is filed.
• there is no requirement that an interested party suspect the potential foul play in order to file a caveat.

Question 38

will contest: undue influence

Answer 38

a coercive relationship

the contestant alleges 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; and
* The testator had a weakened intellect at the time of execution.

burden shift

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.

effect

If undue influence is proven, the beneficiary is treated as if she predeceased the testator to the extent that the gift is in excess of the beneficiary’s intestate share.

Question 39

will contest: fraud

Answer 39

The contestant bears the burden of showing, by a preponderance of the evidence, that the beneficiary engaged in an unlawful misrepresentation at the time of the conveyance.

Elements—the beneficiary made a misrepresentation with:
1. The intent to deceive the testator; and
2. The purpose of influencing the testamentary disposition.

kinds 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 content of the will

remedy

a constructive trust is the most common remedy for fraud (back to the testator’s estate)

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Generally, a cause of action for fraud, duress, or undue influence accrues on the decedent’s date of death.

An interested person must bring such action within four years after the decedent’s date of death.

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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.

Ratification would only occur if both spouses lived together with knowledge of the fraud, duress, or undue influence.

Question 40

will contest: forfeiture clauses

Answer 40

in terrorem: a no contest clause designed to dissuade a beneficiary from suing about his share is unenforceable in fl

Question 41

will contest: ambiguities

Answer 41

Two Types: Latent and patent

Latent ambiguity: cannot see it on the face of the will.

Patent ambiguity: appears on the face of the document.

Rule: Florida does not treat them differently. Extrinsic evidence is admissible to resolve both kinds of ambiguities.

Plain Meaning Rule: Words get their plain meaning. Florida allows extrinsic evidence to come in when the terms of the will were affected by mistake.

Question 42

wills: revocation

Answer 42

• In order to revoke a will, a testator must have testamentary capacity (is of sound mind, appreciate the nature of the act, ETC.)
• Three general ways to revoke a will:
  1. revocation by operation of law
  2. revocation by subsequent instrument
  3. revocation by physical act

Question 43

wills: revocation –> Special Issues

Answer 43

third-party revocation
A third party can revoke on behalf of a testator if:
1. At the testator’s direction; and
2. In the testator’s presence.

revival

Florida does not recognize automatic revival of a revoked will.

Executing a codicil to a first will that was previously revoked by the execution of a second will can republish and revive the first will.
* However, the codicil must expressly refer to the first will and must be executed with the same formalities required for a will.

dependent relative revocation

DRR provides a safety valve for testators who revoke a will on the basis of a mistake.
* testator must have intended NOT TO DIE INTESTATE and conditioned revocation of first upon validity of the second

The mistake can be grounded in law or in fact.
* like making a new will thinking that it is legally valid even though it was only signed by one witness

DRR invalidates the mistaken revocation and revives the earlier revoked will.
* terms of invalid will CANNOT BE materially different from the revoked will

Goal is to avoid intestate succession.

for drr to apply, even if first will is destroyed physically or by fire it can be revived…idk how but it is the correct answer

think: mistake of law/fact –> intent to die testate and —> conditional revocation

Question 44

wills: revocation –> lost will

Answer 44

In Florida, if a will that was last seen in the testator’s possession cannot be found, a rebuttable presumption arises that the testator revoked the will, which can only be overcome by competent and substantial evidence.

If overcome, the will can be probated if:
1. its specific content is proved by the testimony of two disinterested witnesses or
2. an identical copy is proved by the testimony of one disinterested witness. A draft of a will does not meet this requirement.

Burden is on the proponent to show will’s existence by competent and substantial evidence that testator did not revoke the will

if the presumption of revocation is overcome, a disinterested witness testifies as to its correctness and a carbon copy can be accepted

Question 45

wills revocation: by operation of law

Answer 45

Revocation by operation of law means that a will is partially or fully revoked by operation of law. This occurs in cases of marriage, divorce, or birth or adoption of children

• marriage: if a person marries after the execution of a will and the spouse survives the testator, the new spouse is a “pretermitted spouse” and takes an intestate share of the testators estate.
• Divorce/ annulment: a divorce or annulment revokes all provisions in a will in favor of the former spouse. For administration purposes, the spouse is treated as having predeceased the testator (includes life insurance policies and beneficiaries of bank accounts, any payment or transfer at death of an interest in an asset to or for the benefit of the decedent’s former spouse will be void and interest will instead pass to decedent’s second beneficiary or to his heir under intestacy)
• BUT IF the decedent remarried the former spouse whose interest would have been revoked AND they were married to each other at the time the decedent died, the spouse becomes entitled to the benefit again
• legally separated but not divorced at the time of the decedent’s death= separated spouse is a surviving spouse for the purposes of the intestacy statutes.
• remember: Under intestacy, if a decedent is survived by a spouse and a child who is not the descendant of the surviving spouse (think man has child from previous marriage and then re-marries, and then he dies) the surviving spouse receives fifty percent of the decedent’s estate and the child the other fifty percent.
• Children: a child born or adopted after the execution of the will is a “pretermitted child” and is entitled to a share of the estate equal in value to what he could have received if the testator died intestate
• BUT if testator ALREADY has children and leaves SUBSTANTIAL portion of estate to other parent of pretermitted child AND other parent survives testator, pretermitted child IS NOT entitled to intestate share

Question 46

effect of bigamy on spouse

Answer 46

In Florida, a subsequent bigamous marriage to another will estop the surviving spouse from taking an intestate share of the first spouse’s estate.

If Bob marries Amy, then marries Carol without ever divorcing Amy, when Amy dies he will not be able to take intestate share of Amy’s estate

Question 47

wills revocation: by subsequent instrument

Answer 47

• A will or any part thereof may be revoked by a subsequent written instrument that is executed with the same formalities as are required for the execution of a will.
• This written instrument can be a will, a codicil, or any other written instrument so long as will formalities are observed.
• A subsequent will that does not explicitly revoke an earlier will may implicitly revoke the earlier will, or part of the earlier will, if it contains inconsistent provisions.
• Example: first will leaves the Ford Mustang to John. A second will is executed and says nothing about revocation, but leaves the Ford Mustang to Bob. The Ford Mustang provision in the first will is implicitly revoked and the car will go to Bob.

Question 48

wills: revocation by physical act

Answer 48

• A will or codicil can be revoked by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation.
• Example: T writes “void. John doe” on the bottom of each page of his will in a blank space. Did T revoke his will?
• Answer: no. This was not a revocation by subsequent instrument since there was no formality observed for execution. It is also not a revocation by physical act because no portion of the will itself was cancelled, to face, or obliterated
• What if T wrote “not valid” across the face of each page?
• Answer: yes, that is sufficient to cancel, to face, or obliterate the will
• There is no partial revocation by physical action in Florida.
• You either revoke the entire will or no part of it.
• Example: t scratches out one provision of the will. Result: the will is still valid and the provision T scratched out continues in full force.
• Revocation of a will revokes all the codicils to that will
• but revocation of a codicil revives the underlying will to its original form
• execution of a codicil to a first will that was previously revoked by the execution of a second will revives the first will if the codicil must expressly refer to the first will

Question 49

construction of wills: incorporation by reference

Answer 49

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.
4. signed by the testtator
5. describe the items and devises with reasonable certainty

The list does not need to exist when the will is executed
* Because the list does not have to exist when the will is executed, it may be validly amended after the will’s execution (just crossing off sections and signing is ok)

Integration: The will consists of all pages that are present at the time of the execution and that are intended to be part of the will.

BUT WHERE THE LIST CONFLICT WITH THE WILL, THE WILL CONTROLS (list crosses off A’s name and says B will have it , but will says B will have it, will controls and B will have it)

Question 50

construction of wills: acts of independent significance

Answer 50

A testator can dispose of property based on some act or event that is unrelated to the execution of the will.

This doctrine applies to acts that occur in the future (after the execution of the will). That makes it different from both incorporation by reference and republication by codicil, which are about past acts.

Question 51

wills: residual estate

Answer 51

• Residual: the residual consists of all property that was not devised by the will
• example: T has a car and a plane. T’s will will devise a car to J. The plane is part of the residual
• the residual can be devised. If not devised, it passes through the intestacy rules

Question 52

lapse:

Answer 52

• A gift to a beneficiary lapses if the beneficiary dies during the testator’s lifetime. You cannot gift to a dead person.
• Example: teens advises his car to Fred. Fred dies, then T dies the gift of the car to Fred’s lapses. His heirs cannot take the car

Question 53

antilapse:

Answer 53

• However, Florida has an anti lapse statute that is meant to protect certain types of gifts.
• gift could be part of the estate “my entire estate to my neices and nephews”
• The anti lapse statute provides that a gift to a predeceased beneficiary will not lapse but will instead go to the beneficiary surviving descendants per stirpes if:
  1. the beneficiary is a grandparent or a descendant of a grandparent of the testator; And
  2. the beneficiary is dead when the will is executed, fails to survive the testator, or is required to be treated as predeceased by operation of law.
• if the beneficiary has no descendants, it cant go to someone the beneficiary devises his estate to (like a friend) it would just fail.
• A testator can opt out of the anti lapse statute by a clear intention in the will.

Question 54

ademption:

Answer 54

• Ademption refers to what happens when a specifically bequeath property is not in the testators estate upon death
• There are three types of devises in a will

Question 55

ademption: specific devise

Answer 55

specific device : a devise that is to be satisfied only by the specific / particular property described in the device

The beneficiary of property that is the subject of a specific devise that has been sold by the testator with the intent of reducing or eliminating the devise is entitled to any portion of the purchase price of property that was owed to the testator at death as well as any insurance proceeds due with respect to the property at the testator’s death.

example: T owns a car and plane. T devices the car to J. The device of the car to J is a specific devise because it can only be satisfied by the specific property described. If T sells the car with the intent to reduce the devise and then dies, J will be entitled to remaining purchase price owed to T’s estate and any insurance proceeds due, too.

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under Florida’s anti-ademption statute, a devisee is entitled to 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 or bequeathed obligation.
* if in will testator says this note for the mortgage of this house is for A, all my personal property to B, if the testator during his life negotiates to have title of the house in lieu of foreclosure, then it will go to A

Question 56

ademption: general devise

Answer 56

• General devise: a devise of this specific dollar amount that is payable out of the general assets of the estate
• example: T devises $5000 to Joe. Assume the estate does not have $5000 in cash. The personal representative can sell assets to come up with the $5000 or can give assets in the estate to Jay that are valued to $5000

Question 57

ademption: demonstrative devise

Answer 57

• Demonstrative devise: a devise of a specific dollar amount that is payable from a particular asset
• example: T devises $5000 to Jay to be paid from his Microsoft stock

Question 58

ademption applies to which devise only?

Answer 58

• Ademption only applies to specific devises
• If the property specified by the specific devise is not in the estate at the time of the decedents death, the gift adeems and nothing goes to the beneficiary as part of that devise.
• Ademption does not apply to general or demonstrative devices.
• This means that the beneficiary must get the sum of money specified (assuming there are monies to pay of course)

Question 59

wills: family allowance

Answer 59

• Florida authorizes a payment to a spouse or minor children in order to support the spouse or minor children during the period in which assets are tied up in the probate administration procedure.
• The maximum family allowance in Florida is $18,000

Question 60

wills: exempt property

Answer 60

• In addition to homestead and family allowance rights, a surviving spouse of a decedent who was domiciled in Florida at the time of his or her death is entitled to several items of tangible personal property.
• If there is no surviving spouse, these items are set aside for any of the decedents minor children.
• These items are exempt from all claims against the estate except perfected security interests on the property.
• If the exempt property is devised in the will, it is not subject to these protections.
• Exempt property is:
• Household furniture and furnishings up to $20,000
  o personal motor vehicles: no limit in amount, up to two vehicles
• less than 15,000 pounds
• titled in the name of the decedent and regularly used by the decedent or members of the immediate family as personal vehicles
• prepaid college programs

Question 61

wills: spousal elective share

Answer 61

• A spousal elective share protects surviving spouses from disinheritance
• the spousal elective share permits the spouse to take 30% of the elective estate in lieu of his or her share under will
• Spousal elective share is in addition to the spouse’s right to homestead property, exempt property, and a family allowance

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The elective estate includes:
* the decedent’s probate estate (but not homestead),
* payable on death accounts (even if its payable to someone else)
* decedents fractional interest in property (value of the property divided by the number of tenants) and property held as JTROS or TBE,
* revocable trust,
* net cash surrender value of the decedents life insurance policy (even if insurance is payable to someone else),
* and property transferred during the one year period preceding the decedent’s death. (there are others, but these are the common ones)

DOES NOT INCLUDE
* the full amount of the life insurance proceeds (only the policy’s cash surrender value IS included)

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equitable apportionment
If the share is still not satisfied, the probate court will take from the rest of the estate to satisfy the elective share.

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**Waiver* *

Before or after marriage, surviving spouse can waive the right to an elective share:

• Written waiver contract; and
• signed document by waiving party in presence of two witnesses.

if the waiver waived “all rights” (unless stating otherwise) encompasses the waiver of these rights, then it waives the elective or pretermitted share of a decedent’s estate, homestead property, and a family allowance.

After the marriage:

• If the waiver agreement is executed after the marriage, then each spouse must make a fair disclosure to the other about that spouse’s estate

Question 62

family protections: property set aside

Answer 62

Right to exempt personal property if the decedent was domiciled in Florida at death

Goes first to spouse, then to descendant

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

Question 63

homestead property:

Answer 63

• Review your Florida constitutional law materials for general homestead information
• In Florida, a property qualifies as homestead and is generally protected from creditors when it is owned by a natural person, the owner is a Florida resident, and the property is the residence of the decedent or the decedent’s family.
• recall, homestead protection is limited to 1/2 acre inside a municipality and 160 acres outside of municipality
• the ability to devise homestead property may be limited depending on whether the decedent is survived by a spouse and/or minor children.

Question 64

homestead: ability to devise via will

Answer 64

• If the decedent is survived by spouse or minor children, the homestead may not be devised.
• If the decedent is survived by a spouse but no minor children, the homestead may only be devised to the spouse.
• If the decedent is not survived by a spouse or minor children, the homestead may be devised.
• If you violate in devising a homestead it is as if it did not happen and it will pass through intestacy

Question 65

homestead: intestate descent

Answer 65

• If the homestead is improperly devised or not devised, it descends in the same manner as other intestate property with the following exception:
• if the decedent is survived by a spouse and one or more descendants (no this isn’t minor children), the surviving spouse takes a life estate and the descendants take a vested remainder, per stirpes.

Question 66

probate estate: jurisdiction and admitting will to probate

Answer 66

• In Florida, circuit courts have exclusive jurisdiction over the settlement of a decedents estate
• if a will is not self proved by way of affidavit, it must be proven before it can be admitted to probate.
• This is done by way of the witnesses to the will providing a sworn oath from one of the witnesses to the will

Question 67

probate estate- personal representative

Answer 67

• The personal representative of the probate estate is responsible for marshalling the decedents assets, giving notice to creditors, paying valid claims, filing the decedents final income tax and estate tax return (if required), wind up the decedents affairs, and distribute the remaining assets according to the decedents will or the intestacy statutes.
• . When there is more than one personal representative (joint personal representatives) a majority of the personal representatives must agree on all acts related to administration of the estate (e.g., sale of stock), unless the will states otherwise.
  VVVVVV

A personal representative may avoid liability for participating in an action at the direction of the majority of personal representatives if she expresses her dissent to all of the other personal representatives in writing at or before the time of the action

vvvvvvv
A person is fully protected in any dealing with that joint representative if the person lacks actual knowledge that joint personal representatives have been appointed. In such instances, the dealing is treated as if the joint personal representative had the power to act on behalf of the estate. Additionally, when the will grants the personal representatives the power to sell assets of the estate, the purchaser takes the property free of claims of estate creditors and entitlements of estate beneficiaries

Question 68

probate estate- personal representative

Answer 68

• The personal representative of the probate estate is responsible for marshalling the decedents assets, giving notice to creditors, paying valid claims, filing the decedents final income tax and estate tax return (if required), wind up the decedents affairs, and distribute the remaining assets according to the decedents will or the intestacy statutes.

Question 69

probate estate: who is entitled to be personal rep

Answer 69

o In a testate estate, in the following order:
1. the person nominated in the will
2. the person selected by a majority in interest of the persons entitled to the estate
3. A devisee under the will
o in an Interstate estate, in the following order:
1. the surviving spouse
2. the person selected by a majority in interest of the heirs
3. the heir nearest in degree of kinship to the decedent

Question 70

personal rep qualifications

Answer 70

• Must be a resident of the state of Florida if the person is not related by blood or marriage to the decedent.
• must be 18 years of age or older
• must have mental capacity
• must never have been convicted of a felony
• a Florida or Federal Bank, savings and loan, or other Trust Company authorized to exercise fiduciary powers may also serve as a personal representative.

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a person who is served with notice of the opening of the administration of a decedent’s estate and the appointment of a personal representative has 3 months in which to challenge the appointment of the personal representative, or else the challenge is barred.

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In an intestate estate, the order of preference for personal representative is:
* surviving spouse
* person selected by a majority in interest of decedent’s heirs
* heir nearest in degree or best-qualified heir in this group as per the court.

Question 71

probate: personal rep compensation

Answer 71

• A personal representative is entitled to reasonable compensation for his or her services payable from estate assets
• a provision in the will limiting the amount of compensation to the personal representative is not binding unless it was made pursuant to a contract between the decedent and the personal representative

Question 72

creditor claims

Answer 72

• Creditors must file claims in order to be paid from the estate.
• The personal representative must promptly file a notice to creditors once a week for two consecutive weeks in a newspaper published in the county of administration.
• However, personal service of the notice of administration is required to known and reasonably ascertainable creditors.
• Creditors must file their claims no later than three months after public of the notice to creditors or 30 days after service of the notice of administration.
• Creditors are paid in the following order from the asset of the estate
  1. Cost, expenses of administration, compensation of personal representatives and their attorneys, and attorneys fees awarded from the estate
  2. reasonable funeral, Interment, and grave marker expenses not to exceed $6000
  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
  4. Reasonable and necessary medical and hospital expense of the last 60 days of the last illness of the decedent
  5. family allowance
  6. arrearage from court ordered child support
  7. debts acquired after death by the continuation of the decedents business
  8. all other claims

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A creditor’s failure to file a claim for liability against the decedent’s estate does not affect the creditor’s ability to enforce a lien or mortgage on the decedent’s property.

This means a bank may continue to hold a mortgage on the land that it may foreclose in order to satisfy the unpaid balance of the loan that the bank made to the decedent.

Question 73

abatement

Answer 73

• Only after all creditor claims have been paid can the estate be distributed.
• Creditors get paid first from the intestate property of the estate.

devises distributed in following order (most to least protected, creditors start taking at least protected)
1. specific devise—gift of property that can be distinguished with reasonable accuracy from other property that is a part of the estate (my gold engagement ring)
2. demonstrative devise—pecuniary gift that identifies a particular fund or asset as the source of payment ($10,000 from Bank A)
3. general devise—gift of personal property that the testator intends to be satisfied from the general assets of the estate and ($1000)
4. residuary devise—the remainder of the estate after all claims against the estate and all specific, general, and demonstrative devises have been satisfied

But if the source of a demonstrative devise is insufficient, then the rest of that devise is to be paid out of the general assets of the estate.
* And 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

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* Example:
* T devises an empty lot worth $100,000 to a, devises his car worth $5000 to b, and makes two general devices for $5000 to c and $1000 to D. T then devises the residual to E. The estate includes $8000 in cash.
* T dies. The cost of administering the estate and paying creditor claims is $5000. What will each of the beneficiaries receive?
* Answer: first, we pay from intestacy. This isn’t an issue here.
* Next we take from the residual, which is $8000. After paying creditors, there remains $3000 in cash. We do not have to touch the general, specific, or demonstrative devices to pay the debt.
* There now remains the lot, the car, and the $3000 cash.
* E gets nothing. There will be no residual because we need to pay C&D.
* C and D will receive a pro rata share of the $3000 cash
* A will get the lot and B will get the car

example 2

$20,000 to my brother Gabriel, $30,000 to my neice Emma from my savings with WellsFargo, $50,000 to my neice Valentina from checking at Chase. At death, WellsFargo has $10,000 and Chase has $40,000. There is an additional $25,000 in my estate.

The $20,000 to Gabriel does not have a specified souce- general devise.

The devises of $30,000 to Emma and $50,000 to Valentina are to come from WellsFargo and Chase bank- demonstrative.

The account at WellsFargo only has $10,000 and the account at Chase only has $40,000.

When these sources are depleted, now the remaining $20,000 owed to Emma and $10,000 owed to Valentina are considered general devises.

As a result, there is a total of $50,000 in general devises owed ($20,000 (Gabriel) + $20,000 (Emma) + $10,000 (Valentina)), but only $25,000 is available to be distributed among the devisees.

Therefore, Gabriel is entitled to two-fifths of the $25,000 ($20,000/$50,000) x $25,000 = $10,000.

Question 74

powers of appointment

Answer 74

Describes the ability of the decedent (donor) to select an individual (donee) to dispose of certain property under the will

Power is personal to the donee (only the donee can appoint)

Two Types: General and special

general

No conditions or restrictions on the donee’s power

The donee can appoint herself or one of her creditors as the owner of the property.

If the donee fails to exercise the power, the property reverts back to the donor’s estate.

special

The donor can specify certain individuals or groups as the objects of the power.

In doing so, the donor limits the donee’s power.

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trust

Florida permits the donee to exercise a power by creating a trust for the object of the property. (This is a minority view.)

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RAP

Powers of appointment are subject to the Rule Against Perpetuities.

Treated like a fee simple interest

Power must be exercisable or fail within the perpetuities period.

Question 75

joint will

Answer 75

A joint will is a single document executed by two or more persons that is intended to serve as the will of each person.

Upon the death of a joint testator, the joint will is probated as that testator’s will.

In Florida, executing a joint will does not create a presumption of a contract that neither party can revoke the will.
* A joint testator may revoke the joint will even if the testators have a contract prohibiting revocation.
* Such a revocation subjects the revoking joint testator to a breach-of-contract action, but it does not affect the validity of the instrument as the will of another joint testator.

Question 76

summary administration

Answer 76

In Florida, summary administration is allowed for estates in which the:
* decedent has been dead for at least two years or
* value of the Florida estate is $75,000 (not including property exempt from creditors).

If the decedent is testate, the will must not require formal administration for summary administration to be allowed.

Question 77

formal administration

Answer 77

In Florida, formal administration is required when an estate is worth over $75,000, not including exempt personal property or homestead. Exempt personal property is applicable when the decedent is survived by a spouse or children, and includes:

• household furniture, furnishings, and appliances in the decedent’s usual place of abode up to a net value of $20,000 as of the date of death
• two motor vehicles, held in the decedent’s name and regularly used by the decedent or his immediate family for personal use
• all 529-plan qualified tuition programs and
• certain state benefits paid to teachers and school administrators.

Homestead operates to protect property from creditors if the decedent is survived by a spouse, children, or (if no spouse or children) the property is left to statutory heirs (e.g., blood relatives, not friends).