MC Wills

Question 1

What are lineal vs collateral heirs

Answer 1

Lineal descendants include children, grandchildren, etc. Collateral heirs (e.g., siblings) stem not from one another but from a common ancestor

Question 2

What is a per stirpes distribution

Answer 2

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

Question 3

The surviving spouse takes the entire intestate estate if: (one of what two scenarios occurs)

Answer 3

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

Question 4

When is surviving spouse entitled to one-half of the intestate estate

Answer 4

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

Question 5

What is the effect of divorce or legal separation on the right to inherit

Answer 5

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

Question 6

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

Answer 6

(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

Question 7

For purposes of intestate succession, how are adopted children treated in relation to their adopting parents and to their natural parents

Answer 7

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.

Question 8

For purposes of intestate succession, how are stepchildren and foster children treated

Answer 8

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

Question 9

How are posthumous children treated for the purposes of intestate succession

Answer 9

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

Question 10

How are nonmarital children treated for the purposes of intestate succession

Answer 10

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

Question 11

For half bloods-brothers and sisters who have only one common parent-how does inheritance by collateral kin work

Answer 11

Florida provides that half bloods take half as much as whole bloods, except where all collateral kin are half bloods

Question 12

What is the only way to disinherit an heir

Answer 12

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

Question 13

What happens in the case of simultaneous death

Answer 13

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.

Question 14

What four things are needed for a beneficiary or heir to disclaim an interest

Answer 14

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

Question 15

What happens to a persons interest in an estate when that person, as a beneficiary or heir, successfully disclaims their itnerest

Answer 15

It results in the interest passing as though the disclaimant died immediately before the interest was created

Question 16

What are the requirements for one to qualify as a qualified disclaimer for federal gift tax purposes

Answer 16

the disclaimer must be made within nine months after the decedent’s death or the beneficiary’s 21st birthday.

Question 17

Does a spendthrift provision or similar restriction damage the right of a beneficiary or heir to disclaim?

Answer 17

No–the right to disclaim will still exist

Question 18

Is a disclaimer valid against creditors of the disclaimant, including federal tax liens?

Answer 18

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

Question 19

In what five scenarios is a right to disclaim an interest barred?

Answer 19

(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

Question 20

What happens in intestacy in the case of bigamy

Answer 20

Intentional bigamous conduct bars the bigamous spouse from inheriting the other’s estate

Question 21

What is the Slayer Statute

Answer 21

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

Question 22

How do advancement of intestate shares work in FL

Answer 22

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.

Question 23

What is the satisfaction of legacies

Answer 23

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

Question 24

What constitutes a will, what is a codicil, and may a will be electronic?

Answer 24

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.

Question 25

Because a will is not operative until the testator’s death, a beneficiary has a ____ (not a property interest) until that time

Answer 25

an expectancy

Question 26

What is the rule of testamentary intent

Answer 26

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).

Question 27

What is a conditional will

Answer 27

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

Question 28

What is the testamentary capacity required

Answer 28

The testator must be of sound mind and at least 18 years old or an emancipated minor at the time

Question 29

What is the major formal requirement of a will

Answer 29

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.

Question 30

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

Answer 30

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.

Question 31

Where must the will be signed, and is an electronic signature allowed?

Answer 31

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.

Question 32

Does Florida require a will to be published?

Answer 32

No

Question 33

Are interested witnesses allowed to take under a will

Answer 33

In Florida, yes

Question 34

What is an attestation clause

Answer 34

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.

Question 35

What is a self proving affidavit

Answer 35

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.

Question 36

Are holographic or oral wills recognized in FL?

Answer 36

No

Question 37

What are the three requirements for a properly executed military testamentary instrument to be a valid will in FL

Answer 37

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

Question 38

How does a foreign will operate in FL

Answer 38

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

Question 39

Can a attorney be liable for negligence in will creation?

Answer 39

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

Question 40

How does integration of the different parts of the will work? How can proof of integration be provided?

Answer 40

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

Question 41

What is a codicil, what formalities are required, and how does it affect the execution date of the will

Answer 41

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.

Question 42

A document may be incorporated by reference into a will, provided what three things? What is the exception to this

Answer 42

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.

Question 43

When may a person with testamentary capacity revoke their will

Answer 43

anytime before death

Question 44

by what three methods may a will be revoked

Answer 44

by operation of law, by subsequent instrument, or by physical act

Question 45

may a will that the testator contractually agreed not to revoke be revoked?

Answer 45

yes but the beneficiaries may then have a breach of contract action against the estate

Question 46

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

Answer 46

(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

Question 47

What happens to a will if there is divorce or annulment

Answer 47

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.

Question 48

What happens with will if divorced spouses remarry

Answer 48

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.

Question 49

What happens to pretermitted children in regards to wills

Answer 49

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.

Question 50

How does revocation by written instrument work

Answer 50

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

Question 51

How does revocation by physical act work

Answer 51

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

Question 52

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

Answer 52

The rebuttable presumption arises that the testator revoked it

Question 53

Does Florida permit an executed will to be partially revoked by physical act (e.g., striking out a clause)

Answer 53

No. the stricken clause is given effect as if nothing had been done to it

Question 54

When a will has been executed in duplicate, does one or both have to be revoked

Answer 54

an act of revocation done to either copy revokes the will

Question 55

Does a revocation of a will revoke all codicils with it? How about visa versa?

Answer 55

The revocation of a will revokes all codicils to it, but revocation of a codicil to a will does not revoke the entire will

Question 56

Can you revive a revoked will

Answer 56

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

Question 57

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

Answer 57

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

Question 58

What is the doctrine of dependent relative revocation (DRR)

Answer 58

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

Question 59

Whats the difference between a joint and mutual will

Answer 59

a joint will is a will of two or more persons executed as a single instrument. mutual wills are separate instruments with reciprocal provisions

Question 60

How does a contractual will work

Answer 60

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.

Question 61

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)

Answer 61

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.

Question 62

What happens to those beneficiaries that predecease a testator in a class gift

Answer 62

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

Question 63

What happens if a will makes a gift to a beneficiary who was dead at the time the will was executed

Answer 63

the gift is void

Question 64

What is ademption

Answer 64

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

Question 65

What is a specific devise or bequest and how does ademption tie into it

Answer 65

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.

Question 66

What is a general legacy and a demonstrative legacy and how does ademption tie into it

Answer 66

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”

Question 67

What is the elective share statute and what percentage is it

Answer 67

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

Question 68

What does the elective estate consist of

Answer 68

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.

Question 69

What does the elective estate not consist of

Answer 69

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

Question 70

the election for the elective share must be filed on or before the earlier of what two dates

Answer 70

(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

Question 71

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

Answer 71

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

Question 72

How does satisfaction of the elective share work? Can the spouse refuse to accept certain interests, for example?

Answer 72

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

Question 73

Can the right to election of the elective share be waived? When can it be waived?

Answer 73

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

Question 74

What is the pretermitted child statute

Answer 74

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

Question 75

What is the family allowance

Answer 75

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

Question 76

When is a spouse disqualified from exercising spousal rights

Answer 76

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

Question 77

Are there any restrictions on the testamentary gifts to charity

Answer 77

no, regardless of the size of such gifts, and regardless of when the testator’s will was executed

Question 78

What is a will contest

Answer 78

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

Question 79

Can a will be void in both part and entirely?

Answer 79

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.

Question 80

What does the personal representative do to administer the will

Answer 80

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

Question 81

What is the time in which a will contest must be filed

Answer 81

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

Question 82

When must testamentary capacity exist

Answer 82

at the time a will is executed

Question 83

what must exist to have testamentary capacity

Answer 83

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

Question 84

To establish undue influence, the contestants must establish what three things

Answer 84

(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.

Question 85

What is the rule for gifts to lawyers or persons related to lawyers

Answer 85

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.

Question 86

How does contesting a will on the basis of fraud work

Answer 86

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

Question 87

What is the rule on mistake affecting testator’s intent

Answer 87

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

Question 88

What is mistake in execution of the will and what is the result

Answer 88

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

Question 89

What is mistake in the inducement and what is the result

Answer 89

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

Question 90

What is mistake as to contents of the will and what is the result

Answer 90

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

Question 91

What is the difference between a latent and patent ambiguity

Answer 91

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

Question 92

What may happen if a testator mistakenly believes he has effectively revoked a will or codicil

Answer 92

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

Question 93

how do no contest clauses work in florida

Answer 93

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

Question 94

What is probate

Answer 94

probate refers to the proceeding in which an instrument is judicially determined to be the duly executed last will of the decedent

Question 95

What Florida court has exclusive jurisdiction over probate

Answer 95

circuit courts

Question 96

In Florida where is venue for wills

Answer 96

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

Question 97

Is a provision in a will requiring the arbitration of disputes allowed

Answer 97

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

Question 98

What are the ways in which a will can be proved

Answer 98

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.

Question 99

How may a lost or destroyed will be proved

Answer 99

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

Question 100

For a testate decedent, what is the order of preference for appointment as personal representative (3)

Answer 100

(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

Question 101

For an intestate decedent, what is the order of preference for appointment as personal representative (3)

Answer 101

(i) the surviving spouse, (ii) the person selected by a majority in interest, and (iii) the heir nearest degree

Question 102

What are the requirements to be a personal representative

Answer 102

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

Question 103

The only nonresidents qualified to serve as a personal representative are: what three persons

Answer 103

(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

Question 104

What are the duties of a personal representative

Answer 104

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

Question 105

What is the personal representative duty to file inventory

Answer 105

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.

Question 106

What are the powers of a personal representative

Answer 106

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

Question 107

What is the power dynamic if there are two or more persons appointed as personal representative

Answer 107

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.

Question 108

In what two cases are exculpatory clauses of a personal representative void

Answer 108

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)

Question 109

When is removal of a personal representative allowed

Answer 109

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.

Question 110

To what extent is a personal representative entitled to compensation

Answer 110

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.

Question 111

To what extent is a personal representative entitled to compensation when there are two or more representatives

Answer 111

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.

Question 112

Assets are paid to creditors of insolvent estates according to what priority (8 classes)

Answer 112

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

Question 113

How must a personal representative inform creditors of estate administration

Answer 113

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

Question 114

Who is liable if the personal representative in good faith fails to publish or serve the required notice

Answer 114

the personal representative is not liable; any liability is on the estate

Question 115

What is the filing period for a creditor

Answer 115

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

Question 116

What are ‘caveats’ in relation to administration of an estate

Answer 116

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

Question 117

What are the only interests exempt from apportionment of taxes upon death

Answer 117

marital and charitable deductions and the homestead exemption

Question 118

What are the two forms of simplified administration allowed in Florida and explain them

Answer 118

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

Question 119

How does closing an administration work and when can it be reopened

Answer 119

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

Question 120

What is the power of appointment

Answer 120

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.

Question 121

What is a general vs a special power of appointment

Answer 121

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

Question 122

for the power of appointment, what is the difference between presently exercisable power vs testamentary power

Answer 122

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

Question 123

What are the specific nuances of the acts of a donee

Answer 123

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

Question 124

If a donee fails to exercise a general power and there is no gift in default, to whom does the property pass

Answer 124

the donor’s heirs or residuary legatees

Question 125

What is the difference between exclusive and nonexclusive special power of appointment

Answer 125

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

Question 126

Can a donee’s creditors reach property subject to a special power?

Answer 126

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

Question 127

What are the three perpetuities issues raised by the power of appointment

Answer 127

(i) the validity of the power itself; (ii) the validity of its exercise; (iii) the validity of the gift in default of appointment

Question 128

How does the rule against perpetuities work against presently exercisable general powers

Answer 128

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

Question 129

How does the rule against perpetuities work against special and testamentary powers

Answer 129

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.