Problem Questions Flashcards
Anti-lapse statute and husband:
Anti-lapse statute does not apply to husband.
No-contest clause:
In FL, a provision in a will purporting to penalize a person for contesting the will or instituting other proceedings relating to the estate is unenforceable.
Wills and three separate “presence” signing requirements:
The FL statute imposes three separate “presence” requirements: The testator must sign (or acknowledge her previous signature) in the witnesses presence (present at the same time) the two witnesses must sign in the testator’s presence and the witnesses must sign in each other’s presence.
Administer of estate requirement:
A testator has the right to name the person who shall administer her estate. Ordinarily, the court has no discretion but to issue letters testamentary to the person nominated in the will, unless the person is disqualified by statute.
A person is qualified to be a personal representative if she is 18 or older, has mental capacity, has never been convicted of a felony and is a resident of FL.
The ONLY nonresidents who are qualified to serve as personal representatives are: (1) grandparent or decendant of a grandparent of the decedent (2) an adopted child or adoptive parent of the decedent (3) decedent’s spouse or a person related by lineal consanguinity to the decendent’s spouse (parent, grandparent, child, grandchild) (4) spouse of any of the foregoing persons.
Uniform Simultaneous Death Act:
When disposition of property depends on the order of death and there is insufficient evidence that the persons have died other than simultaneously, the property of each person is disposed of as if that person survived. In other words, the property passes as though the beneficiary or heir predeceased the other decedent.
predeceased
die before
Doctrine of Dependent Relative Revocation:
An equity type doctrine under which a court may disregard a revocation if it determines that the act of revocation was premised on a mistake of law or fact and would not have occurred but for the testator’s mistaken belief that another disposition of his property was valid.
Extrinsic document:
An extrinsic document (not present at the time the will was executed) may be incorporated into the will by reference so that it is considered a part of the will.
Claims against decedent’s estate:
FL has a special short statute of limitations that applies to claims against a decedent’s estate. A creditor who was served with a copy of the notice of administration must file its claims with the court before the later of;
- three months after the date of the first publication of the notice of administration
- 30 days after the date of the service of the notice.
Once estate is completely administered:
Once estate is completely administered and the personal representative discharged, the administration will not be reopened upon discovery of a later will.
(An administration may be reopened however upon discovery of additional estate property)
Personal representatives and advice of experts:
Personal representatives are not required to follow the advice of experts although if they do not and it turns out to be to the detriment of the estate, they may be liable.
Personal representative and liability:
A personal representative is not liable for the consequences of an act in which he joins at the direction of the majority of the joint personal representatives if he expresses his dissent in writing at or before the time of the joinder.
If personal rep. relied on professional advice, and advice is wrong, they are not liable if they were not negligent in hiring the professional.
Right to Disclaim an Interest:
The right to disclaim an interest is barred if any of the following occur before the disclaimer becomes effective:
- beneficiary accepts the property or any of its benefits
- beneficiary voluntarily assigns transfers, or encumbers the interest or contracts to do so
- property is sold pursuant to judicial process
- beneficiary is insolvent
To be valid, a disclaimer must:
- be in a writing identified as a disclaimer
- describe the interest or power being disclaimed
- signed, witnessed and acknowledged and
- be delivered
Separation vs. divorce
A separation does not affect the distribution of the estate, only a divorce or an annulment will do that.
Divorce/annulment also revokes appointments for spouse to be administrative appointment.
Heirs of the decedent conceived before his death:
Heirs of the decedent conceived before his death, but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime.
Homestead property:
To be homestead property, it must not be titled in survivorship form with the spouse
Children and what they get from parents:
Only those children who left surviving descendants take a share.
Who dies first?
When disposition of property depends on the order of death and there is insufficient evidence that the persons have died other than simultaneously, the property of each person is disposed of as if that person survived.
Order to pay after an insolvent state:
CLASS 1: Costs, expenses of administration, compensation of personal representatives and their attorneys and attorneys fees awarded from the estate.
CLASS 2: Reasonable funeral, interment and grave marker expenses not to exceed $6,000
CLASS 3: Debts and taxes with preference under federal law, Medicaid claims and claims in favor of the state for unpaid court costs, fees or fines
CLASS 4: Reasonable and necessary medical expenses of the last 60 days of the last illness of the decedent
CLASS 5: Family allowance
CLASS 6: Arrearage from court-ordered child support
CLASS 7: Debts acquired after death by the continuation of the decedent’s business
CLASS 8: All other claims
Life insurance:
Life insurance proceeds are payable to the beneficiary designated by the insured in her contract with the life insurance company (not what’s in the will).
What does “in duplicate” mean? E.g., Susan property executed a will in duplicate giving all property to her children.
She executed 2 copies with original signature.
In 2009, T property executed a will in duplicate giving all property to her children. In 2011, she wote “VOID” on one of the copies of the 2009 will and drew many vertical lines across the front of the one-page document. Will revoked?
Yes. An act of revocation on one executed copy revokes all executed copy.
The language VOID clarifies her intent, but just drawing one line through language + intent is enough.
MUST cross some language off of the will.
What is the lost wills statute?
If a will was destroyed, but not revoked, how can the will be probated?
- Due execution must be proved by testimony of attesting witnesses AND
- Contents must be clearly and distinctly proved by the testimony of at least 2 disinterested persons, a correct copy being the equivalent to one of them.
* If can’t do these things, then act as if the will had been revoked.
What is a correct copy in regard to the lost wills statute?
carbon or xerox copy == not a typewritten draft from which only a few minor changes have been made.
What happens if a later codicil is inconsistent with an earlier will?
If the C makes no reference to the will, but contains slightly inconsistent provisions, to teh extent possible the will and codicil are read together. Where inconsistent, the later document controls and thereby revokes the inconsistency in the prior will.
What effect does divorce have on a will? Say T left W his house and money, but 2 years later, he divorces W. One year later, without changing will, he dies.
- What if separated?
- What if separated with property settlement agreement?
- What if they remarry?
Divorce, following a will, revokes all provisions in favor of the ex-spouse. Construe the will as if Sheila were dead.
- Mere separation does not affect her rights under the will.
- Separation with property settlement agreement = waiver + construe as if she were dead.
- If they re-marry, she’s back in.
Can an interlineation be given effect?
NO, unless
- after the change was made, T re-executes the will OR
- T republishes the will by codicil. (occurs when T makes the change on the will, then on a separate sheet of paper writes out the reaffirmation to execute the will as changed and does all the stuff that makes a will compliant).
* Essentially, have to do all of the formalities again.
T/F: In FL there can be no partial revocation by physical act.
TRUE!
Can revoke in entirety by physical act, but not partial.
So if an interlineation fails, the previous designation in the will is not revoked.
If T goes to his will, which says $10,000 to Dan and crosses out $10,000 and puts $15,000. The $15,000 must meet the interlineation rules. If it doesn’t the $10,000 stays. NOT revoked by the cross-out.
What is the Dependent Relative Revocation rule? DRR?
Allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
*T executes W-1. Later he executes W-2, which “hereby revokes all wills heretofore made by me.” Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens?
So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and becuase T would not have revoked W-2 but for the mistake.
*T executes W-1. Later he executes W-2, which “hereby revokes all wills heretofore made by me.” Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens?
So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and because T would not have revoked W-2 but for the mistake.
As a normal matter, a will does not go into effect until admitted to probate at death, but we make an exception if:
the will expresses a revocation of earlier wills. That provision is immediately in effect.
What is the exception, followed in FL, to the rules re incorporating an extrinisc document into a will?
Will may refer to written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (not money) not specifically disposed of in the will.
Written list must be signed.
May be written before or after will was executed.
May be altered at any time.
T must describe property with reasonable certainty.
What are the lapse/ anti-lapse rules?
- When a benificiary named in the will or revocable trust dies before the T, the gift lapses, UNLESS
- It is saved by the state’s anti-lapse statute.
- In FL, the anti-lapse statute applies when the predeceasing beneficiary is the T’s grandparent or descendent thereof who leaves issue.
- Gift goes to issue. (It does not matter if predeceasing beneficiary’s will leaves all to her husband – follow anti-lapse statute).
T devises a will in 2004, it provides, “I give the sum of $5,000 to my sister, Paula.” Paula dies in 2005; she is survived by her husband H and their two children. Paula has a will that leaves all of her estate to H. T dies in 2010. Who takes the $5,000?
Paula’s 2 kids split the $5,000.
Generally the gift would lapse, but FL’s anti-lapse statute provides that the gift does not lapse if the predeceasing beneficiary is the T’s grandparent or a descendant therof who leaves issue.
Here, Paula is a descendent of T’s grandparents (because she is T’s sister) and she left 2 children (issue). Thus, the gift goes to her two children.
What is the class gift rule in re to the anti-lapse statute?
If will makes gift to class, only the class members who survive the T take the share of gift, unless will provides otherwise or anti-lapse statute’s requirements are met.
If residuary estate is devised to two or more persons and the gift to one of them fails for any reason, _____.
the surviving residuary devisees take the entire residuary estate in proportion to tehir interests in the residue.
** Look for anti-lapse statute to apply if one of the devisees is a grandparent of T or a descendant of a grandparent of T.
What is a specific devise or bequest?
Gift of a specific asset and that asset only.
E.g., I devise Blackacre [my 2005 Cadillac] to my son, John.
E.g., “my car” or “all of my bank accounts” All ok because a will speaks as of the date of death.
What is a demonstrative legacy?
Gift of a pecuniary amount + funding instructions.
E.g., I give the sum of $5,000 to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.
What is a general legacy?
Gift of a specified pecuniary amount.
E.g., I give the sum of $10,000 to my daughter, Donna.
What is a residuary bequest?
The gift of whatever is left.
E.g., I give all the rest, residue, and remainder of my property to my wife, Agnes.
What happens if T’s estate is partially insolvent at the time of his death? In what order are the gifts sacrificed (abated) to satisfy funeral expenses, expenses of administration, and creditor’s claims?
- property passing by intestacy
- residuary devises and bequests
- property not specically or demonstratively devised (general legacies)
- specific and demonstrative gifts
What type of gifts does ademption apply to?
specific only
What is the general common law rule re ademption?
If T bequests a specific gift to John and the specific item is not available at the time of T’s death, then John takes nothing.
E.g., T bequests Blackacre to John. Some years before her death, T sold Blackacre, which was specifically devised to John. John’s gift is adeemed. Beneficiary takes nothing.
