Gen MC Q

Question 1

What is the presumption that arises when a will that is last seen in the testator’s possession or control cannot be found?

Answer 1

A presumption arises that the will was revoked. - the reason the will cannot be found is because it was revoked.

Question 2

Can a presumption that a will not found and last in the testator’s control was revoked by overcome?

Answer 2

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.

Question 3

What is a selfproved will?

Answer 3

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.

Question 4

Can the self proved will presumption be overcome?

Answer 4

Can be rebutted by competent testimony of witnesses. A sworn testimony of a subscribing witness may be enough.

Question 5

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.

Answer 5

True

Question 6

What is the order of parties in determining who will be a personal rep?

Answer 6

1) Person named in the will
2) Person selected by a majority of people entitled to the estate
3) A devisee under the will

Question 7

When is there no constitutional restriction on devising a homestead property?

Answer 7

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.

Question 8

What is the homestead protection regarding devising the homestead?

Answer 8

The property cannot be devised to any party if the decedent has a spouse or minor children.

Question 9

Is obliterating or writing over a notarial seal sufficient to revoke a will?

Answer 9

Yes - if act and words are sufficient to be physical acts to revoke testator’s intent

Question 10

True or False: An attorney who drafts a will has a duty to the testator and the beneficiaries.

Answer 10

True - there is no duty to a child who is not already a beneficiary under an existing will.

Question 11

Can real property be sold without a court order?

Answer 11

No it must be authorized or confirmed by the court.

Question 12

How long can a personal rep continue the decedant’s unincorporated business without a court order?

Answer 12

4 months from the date of his appointment - After that circuit court must approve.

Question 13

What is the standard that must be established in order for the court to reform a will?

Answer 13

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.

Question 14

For what type of issues will a court allow extrinsic evidence in to reform or interpret a will?

Answer 14

Latent Ambiguity - Language is clear but application to fact creates issue.

Mistaken Omission

Mistaken Inducement

Question 15

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?

Answer 15

Kindred of the last deceased spouse

Question 16

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.

Answer 16

True

Question 17

What are a spouses rights over cars owned by the decedent?

Answer 17

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.

Question 18

If a will contains: To X, two hundred dollars ($2.00) can extrinsic evidence be admitted to establish testator’s intent?

Answer 18

Yes

Question 19

If a decedent is survived by a spouse and lineal descendants that are all descendants of the surviving spouse, what is the distribution?

Answer 19

The spouse takes the intestate estate

Question 20

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.

Answer 20

True

Question 21

If a surviving spouse dies without making an decision to take an elective share, what is the outcome?

Answer 21

The right to make the election dies with them. The person rep cannot after the fact make the election.

Question 22

What class if a medical expenses within the last 60 days of someone’s life?

Answer 22

Class 4

Question 23

What is the order of payment in insolvent estates?

Answer 23

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

Question 24

What is Class 1

Answer 24

Cost, expenses of admin, compensation to personal rep and attorneys fees

Question 25

What is Class 2

Answer 25

Reasonable Funeral/Grave expenses not to exceed 6k

Question 26

What is Class 3

Answer 26

Debts, Taxes, Medicaid, claims in favor of state for unpaid court fines and fees

Question 27

What is Class 4

Answer 27

Reasonable and necessary medical expenses during the last 60 days of illness for the decedent

Question 28

What is Class 5

Answer 28

Family Allowance

Question 29

What is Class 6

Answer 29

Arrearage from child support

Question 30

What is Class 7

Answer 30

debt after death by continuing decedent’s business

Question 31

What is Class 8

Answer 31

All other debts

Question 32

When must a creditor who is served with notice of administration file its claim with the court?

Answer 32

Later of:
1) 3 months after the date of first publication of notice of admin
or
2) 30 days after the date of service of the notice.

If not filed then, barred forever

Question 33

When must creditor file a claim with the court if notice is never published?

Answer 33

2 years

Question 34

What is sufficient in Florida to prove that the testator lacked capacity?

Answer 34

An insane delusion which results in believing something that has no truth except in their imagination.

Question 35

When must a creditor served with notice via general publication claim money owed to it?

Answer 35

3 months of publication.

Question 36

When must a creditor served with notice personally claim money owed to it?

Answer 36

30 days

Question 37

What is required for an agreement not to revoke the will to be valid?

Answer 37

It must be signed in the presence of two witnesses.

Question 38

If a party signs an agreement agreeing not to revoke will and then revokes it with a new will what occurs?

Answer 38

The last will is admitted to probate.

A constructive trust is held for the distribution under the will subject to the non revocation agreement.

Question 39

If a party agrees to take no share of someone’s estate, do they get the homestead?

Answer 39

No - no share means nothing at all. No allowance. Nothing.