Miscellaneous Estate Issues Flashcards
Presumption of Death
If the personal representative can prove that the person must be dead, either by direct or circumstantial evidence, a court can make a ruling of death and probate can proceed. The standard is a PREPONDERANCE OF THE EVIDENCE.
If the personal representative does not have any evidence to offer on the matter, the Florida Probate Code provides that a person is presumed to have been dead if he is absent from his last known domicile for FIVE years.
Slayer Statute
Kill forfeits all rights in the victim’s estate. The property passes as if the killer had predeceased the victim.
The killer must have acted with INTENT. Negligence is insufficient.
Joint tenancies and tenancies by the entirety are severed and treated as tenancies in common.
Homestead protections are forfeited.
Evidentiary standard: Greater weight of the evidence (lower standard than BARD), which means that the rule can take effect even if the alleged killer was acquitted.
Advancement
A gift made to a future heir, with the intent that the gift be applied against the heir’s inheritance.
Intervivos gifts are not considered advancements unless the intention to make an advancement is declared in a contemporaneous writing by the decedent, or acknowledged in writing by the heir.
Rules on advancements apply to testate and intestate decedents.
Disclaimers
How you refuse a gift.
Must be:
(1) in writing
(2) describe the interest or power being disclaimed
(3) be signed
(4) witnessed and notarized; and
(5) be delivered to the appropriate party
If you have accepted, assigned, encumbered, or sold the gift, you cannot disclaim it.
if you are insolvent, you cannot disclaim a gift.
No-Contest Clauses
A provision that a will attempts to penalize a beneficiary for contesting the validity of a will is unenforceable.
Creditors and Estates
Creditors have a limited time to make their claims against a decedent’s estate.
If the creditor is UNAWARE of the probate proceeding, the creditor may not file its claim in time.
Florida allows “interested persons” to file a notice with the court called a “caveat.” Once the caveat is filed, the caveator is entitled to formal notice of all probate proceedings.
- -Creditors may only file a caveat AFTER the debtor’s death.
- -All OTHER interested persons may file a caveat before or after death.
Simultaneous Death Act
When passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived.
