MC Wills Flashcards
What are lineal vs collateral heirs
Lineal descendants include children, grandchildren, etc. Collateral heirs (e.g., siblings) stem not from one another but from a common ancestor
What is a per stirpes distribution
Per stirpes distribution means that the descendants of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir. Florida follows a strict per stirpes rule, determining stirpital shares at the first generational level, whether or not there are any living takers at that level
The surviving spouse takes the entire intestate estate if: (one of what two scenarios occurs)
if:
a. The decedent is also survived by descendants, all of whom are also descendants of the surviving spouse, and the spouse does not have any other descendants; or
b. The decedent leaves no surviving descendants
When is surviving spouse entitled to one-half of the intestate estate
If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other
Note that in that case, the other half of the estate goes to the descendants of the decedent
What is the effect of divorce or legal separation on the right to inherit
The right of a spouse to inherit from the decedent is conditioned on the existence of the marital relationship at the time of death. Divorce severs this relationship; legal separation does not
The portion of the estate not going to a surviving spouse is distributed to other heirs based on five categories until takers are found; what are those five categories and what is the order
(i) Descendants, per stirpes;
(ii) Parents or the surviving parent;
(iii) Brothers and sisters and their descendants, per stirpes;
(iv) One-half to paternal grandparents and one-half to maternal grandparents and their descendants, per stirpes (Both halves to one side if no takers on the other side);
(v) Kindred of the last deceased spouse, as if she had survived the decedent and then died.
Failing all of the above, the estate escheats to the state
For purposes of intestate succession, how are adopted children treated in relation to their adopting parents and to their natural parents
Adopted children are treated the same as natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where an adopting parent marries one of the natural parents or the child is adopted by a close relative. Any parent, natural or adoptive, is barred from inheriting from a child if that parent’s parental rights were terminated.
For purposes of intestate succession, how are stepchildren and foster children treated
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent. However, the doctrine of adoption by estoppel applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt him
How are posthumous children treated for the purposes of intestate succession
In Florida, heirs conceived before the decedent’s death but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime
How are nonmarital children treated for the purposes of intestate succession
Children born out of wedlock are heirs of the mother but not of the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing
For half bloods-brothers and sisters who have only one common parent-how does inheritance by collateral kin work
Florida provides that half bloods take half as much as whole bloods, except where all collateral kin are half bloods
What is the only way to disinherit an heir
The only way to disinherit an heir is to otherwise dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent’s express wishes
What happens in the case of simultaneous death
Florida has adopted the Uniform Simultaneous Death Act, which provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and if the order cannot be established, the property of each decedent is disposed of as if he had survived the other. (In the case of a tenancy with right of survivorship, one-half of the property passes through to the estate of each.) The USDA applies unless there are specific contrary provisions in the will (or other instrument). Florida has not adopted the UPC and revised USDA rule that requires a person to survive a decedent by 120 hours in order to take property as an intestate heir, will or life insurance beneficiary, or surviving joint tenant.
What four things are needed for a beneficiary or heir to disclaim an interest
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
What happens to a persons interest in an estate when that person, as a beneficiary or heir, successfully disclaims their itnerest
It results in the interest passing as though the disclaimant died immediately before the interest was created
What are the requirements for one to qualify as a qualified disclaimer for federal gift tax purposes
the disclaimer must be made within nine months after the decedent’s death or the beneficiary’s 21st birthday.
Does a spendthrift provision or similar restriction damage the right of a beneficiary or heir to disclaim?
No–the right to disclaim will still exist
Is a disclaimer valid against creditors of the disclaimant, including federal tax liens?
While a disclaimer is valid as against creditors of the disclaimant because the disclaimant never owner the property, a disclaimer cannot be used to defeat a federal tax lien
In what five scenarios is a right to disclaim an interest barred?
(i) the beneficiary gives a written waiver of the right to disclaim;
(ii) the beneficiary accepts the property or any of its benefits;
(iii) the beneficiary voluntarily assigns, transfers, or encumbers the interest, or contracts to do so,
(iv) the property is sold pursuant to judicial process; or
(v) the beneficiary is insolvent
What happens in intestacy in the case of bigamy
Intentional bigamous conduct bars the bigamous spouse from inheriting the other’s estate
What is the Slayer Statute
A person who wrongfully participates in the killing of another may not receive any benefits (by will, intestsacy, joint tenancy, etc.) as a result of the death. The property passes as if the killer had predeceased the victim. Joint tenancies and tenancies by the entirety are severed and treated as if they were tenancies in common; i.e., the killer neither forfeits his fractional interest in the property nor receives the victim’s fractional interest. The evidentiary standard used in determining whether a person killed a victim is “greater weight of the evidence”; a conviction is not required
How do advancement of intestate shares work in FL
An advancement is a gift made to a next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor’s estate. In Florida, no gift is considered an advancement unless this intention is declared in a contemporaneous writing by the decedent, or acknowledged in writing as such by the heir. If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.
What is the satisfaction of legacies
A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will, if the testator intends the transfer to have that effect. In FL, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. However, a writing is not required if the testator gives specifically described property to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption
What constitutes a will, what is a codicil, and may a will be electronic?
A will is an instrument executed with certain formalities that is testamentary in character, revocable during the maker’s lifetime, and operative at the testator’s death. A codicil is a supplement to a will that modifies it. In FL, a will can be electronic.
Because a will is not operative until the testator’s death, a beneficiary has a ____ (not a property interest) until that time
an expectancy
What is the rule of testamentary intent
The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect (e.g., that it was a sham will).
What is a conditional will
A conditional will is one that provides that it is to be operative only if a stated condition is satisfied, e.g., “if I do not return from this trip.” Note that a court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur
What is the testamentary capacity required
The testator must be of sound mind and at least 18 years old or an emancipated minor at the time
What is the major formal requirement of a will
In Florida, a will must be signed at the end by the testator in the presence of two witnesses, who must sign in the testator’s presence and in the presence of each other.
For the formal signature requirement of creation of a will, what is the rule about when someone may sign for the testator and the order of the signing
Any mark affixed by the testator with the intent that it operate as his signature satisfies the signature requirement. The testator’s signature may be made by another person at the testator’s direction and in his presence. If the proxy signer signs his own name as well, he may be counted as an attesting witness. The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction.
Where must the will be signed, and is an electronic signature allowed?
In Florida a will must be signed at the end. This requirement is satisfied if the testator’s signature is physically in immediate juxtaposition to the will’s dispositive provisions. For any instrument made under the Florida Probate Code, a signature requirement may be satisfied by an electronic signature.
Does Florida require a will to be published?
No
Are interested witnesses allowed to take under a will
In Florida, yes
What is an attestation clause
An attestation clause recites the elements of due execution and is prima facie evidence of those elements. It is useful in the event a witness forgets or misremembers the facts surrounding the execution.
What is a self proving affidavit
A self-proving affidavit is sworn to by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later. Signatures on the affidavit can serve as the signatures needed on the will itself.
Are holographic or oral wills recognized in FL?
No
What are the three requirements for a properly executed military testamentary instrument to be a valid will in FL
the instrument must be executed:
(i) by a testator who is eligible for military legal assistance;
(ii) in the presence of military legal assistance counsel; and
(iii) in the presence of two disinterested attesting witnesses
How does a foreign will operate in FL
A will (other than holographic or oral will) executed by a nonresident in FL is valid in FL if validly executed under the law of the place where the testator was at the time of execution
Can a attorney be liable for negligence in will creation?
An attorney may be liable to beneficiaries harmed by his negligent preparation or execution of a will even though the will beneficiaries are not in privity of contract
How does integration of the different parts of the will work? How can proof of integration be provided?
Physical attachment, internal coherence of pages, or when the pages, read together, set out an orderly dispositional plan raises a presumption that they were present and intended to be part of the will when it was executed. Proof of integration can also be provided by testimony or other extrinsic evidence
What is a codicil, what formalities are required, and how does it affect the execution date of the will
A codicil modifies a previously execute will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last codicil. This date may be important, e.g., for purposes of the pretermitted child statute, to determine whether a child was born after the will’s execution.
A document may be incorporated by reference into a will, provided what three things? What is the exception to this
A document may be incorporated by reference into a will, provided:
(i) it is in existence at the time of execution,
(ii) it is sufficiently described in the will, and
(iii) the will manifests an intent to incorporate the document.
An exception to the requirement that the document exist at execution permit a Florida testator to refer in her will to a list specifying the distribution of items of tangible personal property, and to write or alter that list later. Extrinsic evidence is admissible to identify the writing whose terms are to be incorporated by reference.
When may a person with testamentary capacity revoke their will
anytime before death
by what three methods may a will be revoked
by operation of law, by subsequent instrument, or by physical act
may a will that the testator contractually agreed not to revoke be revoked?
yes but the beneficiaries may then have a breach of contract action against the estate
There is a rule that 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.” The pretermitted spouse does not take an intestate share when one of what three things happens
(i) it is waived in a valid ante- or post-nuptial agreement, (ii) the will includes a gift to the spouse in contemplation of marriage, or (iii) the will discloses an intention not to make a provision for the spouse
What happens to a will if there is divorce or annulment
Divorce or annulment following execution of a will revokes all will provisions in favor of the former spouse. The will is read as if the former spouse predeceased the testator. Florida applies the same rule to revocable trusts, life insurance policies, and any other interest that transfers to a spouse at death.
What happens with will if divorced spouses remarry
The provisions in favor of the spouse are not revived. However, remarriage does revive provisions in an insurance policy, payable on death account, or other nonprobate transfer.
What happens to pretermitted children in regards to wills
Under the pretermitted child statute, if a testator fails to provide in his will for a child born or adopted after the will’s execution, the child is entitled to a share of the estate. In making up that share, general abatement rules apply. Thus, the will is revoked to the extent necessary to make up the child’s share.
How does revocation by written instrument work
All or part of a will may be revoked or altered by a subsequent instrument executed with the same formalities as a will. If the subsequent testamentary instrument does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistent provisions
How does revocation by physical act work
A will or codicil, other than an electronic will, can be revoked by burning, tearing, canceling, defacing, obliterating, or destroying it with the intent to revoke. An electronic will or codicil can be revoked by rendering it unreadable or deleting, canceling, or obliterating it with the intent, and for the purpose of, revocation, as proved by clear and convincing evidence. The intent must be concurrent with the act. The physical act may be performed by another if done at the testator’s direction and in his presence
If a will last seen in the testator’s possession or under his control cannot be found after his death or is found in a mutilated condition, is the rebuttable presumption that it is valid or that the testator revoked it
The rebuttable presumption arises that the testator revoked it
Does Florida permit an executed will to be partially revoked by physical act (e.g., striking out a clause)
No. the stricken clause is given effect as if nothing had been done to it
When a will has been executed in duplicate, does one or both have to be revoked
an act of revocation done to either copy revokes the will
Does a revocation of a will revoke all codicils with it? How about visa versa?
The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will
Can you revive a revoked will
no, there is no revival of revoked wills in FL. Once a will is revoked by language in a later will, it cannot be revived unless it is re-executed or republished
If a will is lost or destroyed and the presumption that the testator revoked it is overcome, how must the specific contents of the will be proved
by the testimony of two disinterested witnesses or by one disinterested witness and a photocopy or carbon copy (but not a draft) of the will
What is the doctrine of dependent relative revocation (DRR)
it applies when a testator revokes his will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked the will. If the other disposition fails, the revocation also fails and the will remains in force. DRR is applied only if it comes closer to what the testator tried (but failed) to do than would an intestate distribution
Whats the difference between a joint and mutual will
a joint will is a will of two or more persons executed as a single instrument. mutual wills are separate instruments with reciprocal provisions
How does a contractual will work
A testator may enter into a contract to make a will, to make a gift by will, or not to revoke her will. In a typical will contract, the parties agree on the terms of their wills and provide that the survivor will not revoke his will after the other’s death. Technically, the survivor may revoke the will anyway and have his new will probated, but the beneficiaries of the revoked contractual will may sue to have a constructive trust imposed on the estate assets in their favor. In Florida, all contracts relating to wills must be in writing and signed by the agreeing party in the presence of two attesting witnesses, and execution of a joint will or mutual will does not create a presumption of a contract to make a will or a contract not to revoke.
How does Florida’s anti-lapse statute work (including the two conditions needed for a beneficiary’s surviving descendants to take his share per stripes)
A gift lapses if the beneficiary predeceases the testator. Nearly all states have anti-lapse statutes that operate to save the gift if the predeceasing beneficiary was in a specified degree of relationship to the testator and left descendants who survived the testator. Florida’s anti-lapse statute provides that a predeceasing beneficiary’s surviving descendants will take his share per stripes if: (i) the beneficiary is a grandparent or descendant of a grandparent of the testator; 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. The statute applies unless a contrary provision appears in the will.
What happens to those beneficiaries that predecease a testator in a class gift
if a will makes a gift to a class, only the class members who survive the testator take a share of the gift, unless the will provides otherwise or the anti-lapse statute’s requirements are met
What happens if a will makes a gift to a beneficiary who was dead at the time the will was executed
the gift is void
What is ademption
ademption refers to the failure of a gift because it is no longer in the testator’s estate at the time of her death. It applies only to specific devises and bequests
What is a specific devise or bequest and how does ademption tie into it
A specific devise or bequest is a gift satisfied only by receipt of the particular property described. If specifically bequeathed property is not in the testator’s estate at death, the bequest is adeemed and the beneficiary takes nothing. In most states, the court will not inquire into the testator’s intent or the reason the property is no longer in estate. Florida courts will admit evidence of the testator’s intent, particularly in circumstances where the absence of the property did not result from her own actions.
What is a general legacy and a demonstrative legacy and how does ademption tie into it
A general legacy is a gift of a specific dollar amount. A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment. neither of these legacies is adeemed by an absence of cash or the specific asset in the estate; they will be satisfied by selling other assets or making a distribution in kind. A court will attempt to construe a gift of securities as a general legacy, unless the testator specifically stated, e.g., “MY 200 shares of Acme stock”
What is the elective share statute and what percentage is it
The elective share statute gives the surviving 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 decedent’s elective estate. The elective share is in addition to the spouse’s right to exempt property, family allowance, and homestead
What does the elective estate consist of
The decedent’s probate estate and various nonprobate assets such as: (i) the decedent’s interest in property that constitutes the decedent’s protected homestead; (ii) the decedent’s interest in “payable on death” or survivorship accounts or securities, or in property held in joint tenancy with right of survivorship or by the entirety; revocable trusts; irrevocable transfers to the extent that the decedent retained a right to income or principal; the net cash surrender value of the decedent’s life insurance; death benefits from a pension; or property transferred within one year before death or in satisfaction of the elective share.
What does the elective estate not consist of
irrevocable transfers made before October 1, 1999, or before the decedent’s marriage; transfers made for adequate consideration or made with the written consent of the spouse; proceeds of the decedent’s life insurance policy in excess of the net cash surrender value or maintained pursuant to a court order; the decedent’s one-half of community property; property in a qualifying special needs trust; property included in the decedent’s gross estate for federal estate tax purposes solely because he possessed a general power of appointment; or the decedent’s homestead if the surviving spouse validly waived her homestead rights and did not receive any interest in the homestead upon the decedent’s death
the election for the elective share must be filed on or before the earlier of what two dates
(i) six 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. Note that the person filing the election may petition the court for an extension of time; if a petition is filed, the time for making the election is tolled. An election may be withdrawn at any time within eight months after the decedent’s death and before the court’s order of contribution
What happens 1) if a surviving spouse dies without having made an election, and 2) if the surviving spouse dies after filing the notice of election
If the surviving spouse dies without having made an election, the right dies with her. However, the right to an elective share is not lost if she dies after filing the notice of election but before the court determines the amount of the elective share
How does satisfaction of the elective share work? Can the spouse refuse to accept certain interests, for example?
All interests that pass or have passed to the spouse are first applied in satisfying the elective share. The spouse cannot avoid this rule by disclaiming or otherwise refusing to accept any interests. The balance of the elective share is equitably apportioned among recipients of elective estate property, taking first from the probate estate or revocable trusts, then from the other property in the elective state. Any balance remaining is satisfied next from the surviving spouse’s interests in trust, and finally, from recipients of charitable lead interests
Can the right to election of the elective share be waived? When can it be waived?
It can be waived by written agreement before or after marriage. Consideration for the agreement is not required. If the agreement is after marriage, each spouse must make fair disclosure of his or her estate; if before marriage, disclosure is not required by the Probate Code
What is the pretermitted child statute
A child omitted from a will who was born or adopted after the will’s execution is entitled to take a share equal to this intestate share had the testator died intestate, unless he received an advancement equal to his intestate share, the omission was intentional, or the testator had other children and left most of his estate to the other parent of the omitted child. Note that a republication of a will by codicil can result in a change in a child’s status with respect to pretermission
What is the family allowance
The purpose of the family allowance is to provide support during probate administration. It is in addition to the amount passing by will, intestacy, elective share, or homestead. The amount of the allowance is up to $18,000 to the surviving spouse and lineal heirs who were receiving or owed support by the decedent. The spouse does not have to show need. The family allowance must be petitioned for; it is not automatic
When is a spouse disqualified from exercising spousal rights
A spouse who procured a marriage to the decedent by fraud, duress, or undue influence is disqualified from exercising the following rights unless the decedent voluntarily cohabited with the spouse with full knowledge of the wrongful conduct or ratified the marriage
Are there any restrictions on the testamentary gifts to charity
no, regardless of the size of such gifts, and regardless of when the testator’s will was executed
What is a will contest
A will contest challenges whether the document offered for probate (or any part of it) is a valid will. The contestant may raise any matter tending to show that the will is not valid and should be denied probate
Can a will be void in both part and entirely?
Yes. a will is void if its execution was procured by undue influence, fraud, duress, or mistake. If only a part of the will was so procured, only that part is void.
What does the personal representative do to administer the will
A personal representative must promptly publish a notice of administration in the county in which the estate is being administered. She then must personally serve a copy of the notice on the decedent’s surviving spouse and all will beneficiaries
What is the time in which a will contest must be filed
An interested person on whom notice is served must file any objection on or before the date that is three months after the date of service of the notice of administration. Objections not filed within that period are barred forever. Alternatively, a petitioner may serve formal notice of the petition for administration on interested parties, who then must raise their objections at the initial hearing for appointment of a personal representative
When must testamentary capacity exist
at the time a will is executed
what must exist to have testamentary capacity
a testator must be at least 18 years old or an emancipated minor and must understand the nature and extent of his property, the persons who are the natural objects of his bounty, and the nature of the disposition being made. Even adjudicated insanity does not necessarily mean that testamentary capacity does not exist. The burden of introducing evidence that a testator lacked mental capacity is on the will contestant. Beware of a fact pattern where an unemancipated testator executes a will before age 18, feels satisfied with it, never executes another, and dies at a ripe old age. Any will executed while under age 18 is invalid unless the testator was an emancipated minor
To establish undue influence, the contestants must establish what three things
(i) influence was exerted, (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. Influence is presumed if the will makes a substantial gift to one in a confidential relationship with the testator who was active in procuring the will. Note that mere pleading, begging, nagging, cajoling, or even threatening do not constitute undue influence. The free will of the testator must be destroyed.
What is the rule for gifts to lawyers or persons related to lawyers
Any part of a written instrument making a gift to a lawyer (or a person related to the lawyer) is void if the lawyer prepared or supervised the execution of the instrument. This rule does not apply if the lawyer is related to the donor. This prohibition cannot be waived.
How does contesting a will on the basis of fraud work
A successful contest on grounds of fraud requires that the testator have been willfully deceived as to the character or content of the instrument, or as to extrinsic facts that would induce the will or a particular disposition, or with respect to facts material to a disposition. If a testator is fraudulently prevented from making a will, some courts will impose a constructive trust against the intestate beneficiaries in favor of those who would have taken had the will been made
What is the rule on mistake affecting testator’s intent
If a mistake of fact or law that affects the testator’s intent or the terms of the will is proven by clear and convincing evidence, by statute the court may reform the will to reflect the testator’s intent
What is mistake in execution of the will and what is the result
Extrinsic evidence is admissible to show that a testator did not know that the instrument he was signing was a will, because the existence of testamentary intent is at issue. If the testator mistakenly signs the wrong will (e.g., H and W sign each other’s), some courts will deny relief, but a Florida court will grant relief if the mistake is proven by clear and convincing evidence
What is mistake in the inducement and what is the result
Traditionally, no relief would be granted if the mistake involves the reasons a testator made his will a particular way and the mistake was not fraudulently induced. Under the Florida statute, however, if it is proven that the will or its terms were induced by mistake, the will can be reformed
What is mistake as to contents of the will and what is the result
evidence is admissible to show that a provision was omitted or is incorrect, even if the language of the will is unambiguous. If the mistake is proven by clear and convincing evidence, the will may be reformed
What is the difference between a latent and patent ambiguity
a latent ambiguity arises if a will’s language is clear on its face but results in a misdescription as applied; a patent ambiguity exists if the uncertainty appears on the face of the will. Extrinsic evidence is admissible to cure both patent and latent ambiguities
What may happen if a testator mistakenly believes he has effectively revoked a will or codicil
Under certain compelling circumstances, a constructive trust may be imposed when a testator mistakenly believes he has effectively revoked a will or codicil, e.g., by destroying a photocopy
how do no contest clauses work in florida
In Florida, a provision in a will purporting to penalize a beneficiary for contesting a will or instituting other proceedings relating to the estate is unenforceable
What is probate
probate refers to the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent
What Florida court has exclusive jurisdiction over probate
circuit courts
In Florida where is venue for wills
Venue is generally the decedent’s county of residence at the time of death, or for nonresidents, any county where the decedent owned property. If the decedent was neither a Florida resident nor owner of property in Florida, venue is proper where any debtor of the decedent resides. A person is presumed to be dead if: (i) she is absent from the place of her last known domicile for five continuous years, and (ii) the absence is not satisfactorily explained after diligent search and inquiry
Is a provision in a will requiring the arbitration of disputes allowed
Among the beneficiaries and personal representative it is enforceable and presumed to require binding arbitration other than disputes of the validity of all or a part of a will
What are the ways in which a will can be proved
A will may be proved by the oath of one of the witnesses. If no competent witness can be found, the personal representative or another person not interested in the will may testify that he believes the offered writing to be the decedent’s will. A will may also be self-proving, if the witnesses have previously signed and sworn to an affidavit as to proper execution.
How may a lost or destroyed will be proved
The exact terms of a lost or destroyed will may be established and offered for probate by any interested person. The specific contents of the will must be proved by the testimony of two disinterested witnesses, or if a correct copy is provided, by one disinterested witness
For a testate decedent, what is the order of preference for appointment as personal representative (3)
(i) the person nominated in the will, (ii) the person selected by a majority in interest of persons entitled to the estate, (iii) a devisee
For an intestate decedent, what is the order of preference for appointment as personal representative (3)
(i) the surviving spouse, (ii) the person selected by a majority in interest, and (iii) the heir nearest degree
What are the requirements to be a personal representative
The personal representative must be age 18 or older, have mental capacity, not be a convicted felon, and (unless related to the decedent) be a Florida resident except under special circumstances
The only nonresidents qualified to serve as a personal representative are: what three persons
(i) decedent’s grandparent or descendant thereof, (ii) decedent’s adopted child or adoptive parent, (iii) decedent’s spouse or person related to spouse by lineal consanguinity, and (iv) a spouse of any of the foregoing
What are the duties of a personal representative
The personal representative must secure and preserve the estate, and keep the estate assets separate from other property. In preserving the estate, the personal representative may take possession of protected homestead property to preserve, insure, and protect it if it is not occupied by an heir or devisee. If the personal representative expends funds or incurs obligations in doing so, he is entitled to a lien on the property and its revenues to secure repayment. The standard of care is the same as that for a trustee
What is the personal representative duty to file inventory
the personal representative must file an inventory of property of the estate. An amended or supplemental inventory must be filed if she learns of any property not included in the original inventory, or if the estimated value or description listed in the original inventory is erroneous or misleading. Any safe deposit box inventory must be filed within 10 days after the box is opened.
What are the powers of a personal representative
The Florida statute provides a broad grant of authority to the personal representative, who in most cases may do with the estate property, without court approval, whatever a fee simple owner could do. Exceptions requiring court approval are: the operation of the decedent’s unincorporated business beyond four months; selling, mortgaging, or leasing real property (unless the will grants this power); and transactions involving a conflict of interest
What is the power dynamic if there are two or more persons appointed as personal representative
If two or more persons are appointed joint representatives, a majority must concur as to any act. The concurrence requirement does not apply if the will provides otherwise, if emergency act is required, or if one has been delegated to act for the others. A dissenting joint personal representative can avoid personal liability for an act if she puts her dissent in writing.
In what two cases are exculpatory clauses of a personal representative void
Exculpatory clauses are void if they: (i) relieve the personal representative of liability for breach of duty committed in bad faith or with reckless indifference; or (ii) appear in the will as a result of the personal representative’s abuse of a confidential relationship with the testator (unless he can show that the clause is fair and was adequately communicated to the testator or her attorney)
When is removal of a personal representative allowed
A personal representative may be removed because of incapacity; failure to account, comply with a court order, or give bond; waste and maladministration of the estate; a felony conviction; insolvency; conflict of interest; or disqualification, as when probate of the decedent’s will, which designated him as personal representative, is revoked.
To what extent is a personal representative entitled to compensation
The personal representative is entitled to a commission (a percentage of the value of the probate estate) payable out of the estate assets. The court may allow additional compensation for extraordinary services. Note that a will provision fixing the personal representative’s compensation is not binding unless the provision was made pursuant to a contract. Note that attorneys for personal representatives are entitled to reasonable compensation as set out in the statute.
To what extent is a personal representative entitled to compensation when there are two or more representatives
If the estate is valued at $100k or more and there are two personal representatives, each is entitled to a full commission. If there are more than two, the compensation that two would have received is apportioned among them. If the estate is less than $100k and there is more than one personal representative, they must apportion one full commission amongst themselves. Note that attorneys for personal representatives are entitled to reasonable compensation as set out in the statute.
Assets are paid to creditors of insolvent estates according to what priority (8 classes)
Class 1: Expenses of administration
Class 2: Funeral expenses up to $6,000
Class 3: Debts and taxes having precedent under federal law, Medicaid claims, and claims in favor of the state for unpaid court costs, fees, or fines.
Class 4: Expenses of last illness (up to 60 days)
Class 5: Family allowance
Class 6: Arrearage from court-ordered child support
Class 7: Decedent’s business debts acquired after his death, to the extent of the business assets.
Class 8: Other claims
How must a personal representative inform creditors of estate administration
The personal representative must “promptly” publish a notice to creditors (once a week for two consecutive weeks) in a newspaper published in the county where the estate is being administered. The personal representative must make a diligent search to determine the names and addresses of the decedent’s creditors who are reasonably ascertainable, and must personally serve a copy of the notice on these creditors within three months after first publication
Who is liable if the personal representative in good faith fails to publish or serve the required notice
the personal representative is not liable; any liability is on the estate
What is the filing period for a creditor
A creditor who was served with a copy of the notice must file its claim with the court before the later of: (i) three months after date of first publication of the notice, or (ii) 30 days after date of service of the notice. Unknown and unascertainable creditors must file their claims within three months after the date of first publication of the notice. Claims arising after death are not subject to the timely filing requirement
What are ‘caveats’ in relation to administration of an estate
Any interested person apprehensive that an estate will be administered or that a will may be admitted to probate without his knowledge may file a caveat with the court containing a statement of the caveator’s interest in the estate. A noncreditor may file a caveat before or after the death of the person from whom the estate will be, or is being, administered, while a creditor may file only after the person’s death. If filed before death, the caveat expires two years after filing. After the filing of a caveat, the clerk must promptly notify the caveator of the date of issuance of letters of administration and the names and addresses of the personal representatives. After the filing of a caveat by a noncreditor, the court may not admit a will to probate, or appoint a personal representative, without service of formal notice on the caveator
What are the only interests exempt from apportionment of taxes upon death
marital and charitable deductions and the homestead exemption
What are the two forms of simplified administration allowed in Florida and explain them
summary administration and ancillary administration. Summary administration may apply if the estate value is less than $75,000 or the decedent has been dead for more than two years. If a nonresident dies leaving assets in Florida, ancillary administration is necessary. Note that no formal administration may be necessary if the estate consists only of personal property, the value of which does not exceed the sum of exempt property and death expenses, and the court gives permission after informal application
How does closing an administration work and when can it be reopened
When the personal representative has completed administration of the estate, she must provide an accounting to the court and any interested person. If no objection is filed within 30 days, the assets will be distributed, the personal representative discharged, and the estate closed. Once the estate is completely administered, an administration may be reopened only upon discovery of additional real estate property
What is the power of appointment
A power of appointment is the authority created in a person (donee) to designate, within the limits described by the creator of the power (donor), the persons who will take certain property and the manner in which they will take it. The objects of the power are those in whose favor a power is exercisable. Takers in default of appointment are persons designated to take the property if the donee fails to effectively exercise his power.
What is a general vs a special power of appointment
A general power of appointment is one exercisable in favor the donee herself, her estate, her creditors, or the creditors of her estate. A special power is one that is exercisable in favor of a specified class of persons that does not include the donee, her estate, her creditors, or the creditors of her estate
for the power of appointment, what is the difference between presently exercisable power vs testamentary power
A presently exercisable power is one exercisable by the donee during her lifetime. A testamentary power is exercisable only by the donee’s will. Unless expressly limited to the donee’s lifetime, a presently exercisable power is also exercisable by the donee’s will
What are the specific nuances of the acts of a donee
The donee is acting as the donor’s agent in appointing the property; thus, when the donee exercises the power, the appointee takes title directly from the donor. A power of appointment is personal to the donee; i.e., she cannot delegate it or assign it. If the donee dies without exercising the power, it terminates. note that appointive property is not subject to the elective share statute
If a donee fails to exercise a general power and there is no gift in default, to whom does the property pass
the donor’s heirs or residuary legatees
What is the difference between exclusive and nonexclusive special power of appointment
A special power is exclusive if it may be exercised in favor of some objects of the power to the exclusion of others; i.e., the donee may appoint to some objects and not others, or may appoint unequal shares. A special power is nonexclusive if it must be exercised in favor of all of the appointees. Special powers are presumed to be exclusive unless the donor expressly provides otherwise
Can a donee’s creditors reach property subject to a special power?
No. This is true even if the donee of the donee of the special power is also the donor, unless the transfer was in fraud of donor-donee’s creditors
What are the three perpetuities issues raised by the power of appointment
(i) the validity of the power itself; (ii) the validity of its exercise; (iii) the validity of the gift in default of appointment
How does the rule against perpetuities work against presently exercisable general powers
If it is certain that a presently exercisable general power will become exercisable or fail within the perpetuities period, it is valid. The perpetuities period begins to run on interests created by the exercise of the power from the date of exercise; therefore, the interests created must vest or fail within 21 years after the death of a life in being on the date of exercise. Gifts in default of a presently exercisable general power are rarely invalid,; the perpetuities period begins to run only when the power ceases
How does the rule against perpetuities work against special and testamentary powers
If a special or testamentary power may be exercised beyond the perpetuities period, which begins to run from the creation of the power, it is void. Thus, unless expressly limited to the perpetuities period, any special or testamentary power given to an unborn person is invalid.
