Gen MC Q Flashcards
What is the presumption that arises when a will that is last seen in the testator’s possession or control cannot be found?
A presumption arises that the will was revoked. - the reason the will cannot be found is because it was revoked.
Can a presumption that a will not found and last in the testator’s control was revoked by overcome?
Yes but there must be evidence of a competent and substantial nature.
If the presumption is overcome, Florida will allow either: (i) the will to be proved by the testimony of two disinterested witnesses; or (ii) via a correct copy of the will and the testimony of one disinterested witness.
What is a selfproved will?
Gives the presumption that the signature requirements were complied with.
The testator and attesting witnesses sign the will.
A sworn affidavit is signed before a notary that the testator declared to the W that the instrument was her will./ Testator and Witnesses signed in the presence of each other at the same time.
Functions as a deposition and allows the will to be admitted to probate without further proof.
Can the self proved will presumption be overcome?
Can be rebutted by competent testimony of witnesses. A sworn testimony of a subscribing witness may be enough.
True or False: Federal and FL Savings Banks, savings and loans, and other trust companies authorized to exercise fiduciary powers may serve as personal representatives in Florida.
True
What is the order of parties in determining who will be a personal rep?
1) Person named in the will
2) Person selected by a majority of people entitled to the estate
3) A devisee under the will
When is there no constitutional restriction on devising a homestead property?
When the decedent is not survived by a minor child and their spouse is either dead or has waived homestead rights or they have no spouse.
What is the homestead protection regarding devising the homestead?
The property cannot be devised to any party if the decedent has a spouse or minor children.
Is obliterating or writing over a notarial seal sufficient to revoke a will?
Yes - if act and words are sufficient to be physical acts to revoke testator’s intent
True or False: An attorney who drafts a will has a duty to the testator and the beneficiaries.
True - there is no duty to a child who is not already a beneficiary under an existing will.
Can real property be sold without a court order?
No it must be authorized or confirmed by the court.
How long can a personal rep continue the decedant’s unincorporated business without a court order?
4 months from the date of his appointment - After that circuit court must approve.
What is the standard that must be established in order for the court to reform a will?
Even if a will is unambiguous, the court may reform the will to conform the terms to testator’s intent if it is proved by clear and convincing evidence that the testator’s intent and terms of the will were affected by mistake of fact or law.
Court will allow extrinsic evidence.
For what type of issues will a court allow extrinsic evidence in to reform or interpret a will?
Latent Ambiguity - Language is clear but application to fact creates issue.
Mistaken Omission
Mistaken Inducement
If a person is married and passes away and has no lineal descendants of their own to whom can their estate go before it escheats to the state?
Kindred of the last deceased spouse
True or False: The Simultaneous Death Act states that the act does not apply to wills, trust, deed, or insurance contract where the provision made for the property is different that the act would provide.
True
What are a spouses rights over cars owned by the decedent?
Entitled to up to two cars each of which may not exceed 15000 lbs, held in their name, and use for family or personal purposes.
If a will contains: To X, two hundred dollars ($2.00) can extrinsic evidence be admitted to establish testator’s intent?
Yes
If a decedent is survived by a spouse and lineal descendants that are all descendants of the surviving spouse, what is the distribution?
The spouse takes the intestate estate
True or False: If a writing states that the gift is an advancement under the will but does not state that it is binding on a predeceased heir’s successors, the advancement is not binding on the successors.
True
If a surviving spouse dies without making an decision to take an elective share, what is the outcome?
The right to make the election dies with them. The person rep cannot after the fact make the election.
What class if a medical expenses within the last 60 days of someone’s life?
Class 4
What is the order of payment in insolvent estates?
Class 1: Cost, expenses of admin, compensation to personal rep and attorneys fees
Class 2: Reasonable Funeral/Grave expenses not to exceed 6k
Class 3: Debts, Taxes, Medicaid, claims in favor of state for unpaid court fines and fees
Class 4: Reasonable and necessary medical expenses during the last 60 days of illness for the decedent
Class 5: Family Allowance
Class 6: Arrearage from child support
Class 7: debt after death by continuing decedent’s business
Class 8: All other debts
What is Class 1
Cost, expenses of admin, compensation to personal rep and attorneys fees
