Problem Questions Flashcards
1
Q
Anti-lapse statute and husband:
A
Anti-lapse statute does not apply to husband.
2
Q
No-contest clause:
A
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.
3
Q
Wills and three separate “presence” signing requirements:
A
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.
4
Q
Administer of estate requirement:
A
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.
5
Q
Uniform Simultaneous Death Act:
A
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.
6
Q
predeceased
A
die before
7
Q
Doctrine of Dependent Relative Revocation:
A
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.
8
Q
Extrinsic document:
A
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.
9
Q
Claims against decedent’s estate:
A
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.
10
Q
Once estate is completely administered:
A
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)
11
Q
Personal representatives and advice of experts:
A
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.
12
Q
Personal representative and liability:
A
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.
13
Q
Right to Disclaim an Interest:
A
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
14
Q
To be valid, a disclaimer must:
A
- be in a writing identified as a disclaimer
- describe the interest or power being disclaimed
- signed, witnessed and acknowledged and
- be delivered
15
Q
Separation vs. divorce
A
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.
16
Q
Heirs of the decedent conceived before his death:
A
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.
17
Q
Homestead property:
A
To be homestead property, it must not be titled in survivorship form with the spouse
18
Q
Children and what they get from parents:
A
Only those children who left surviving descendants take a share.
19
Q
Who dies first?
A
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.
20
Q
Order to pay after an insolvent state:
A
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
21
Q
Life insurance:
A
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).
22
Q
What does “in duplicate” mean? E.g., Susan property executed a will in duplicate giving all property to her children.
A
She executed 2 copies with original signature.
23
Q
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?
A
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.
24
Q
What is the lost wills statute?
A
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.
25
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.
26
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.
27
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.
1. What if separated?
2. What if separated with property settlement agreement?
3. 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.
1. Mere separation does not affect her rights under the will.
2. Separation with property settlement agreement = waiver + construe as if she were dead.
3. If they re-marry, she's back in.
28
Can an interlineation be given effect?
NO, unless
1. after the change was made, T re-executes the will OR
2. 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.
29
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.
30
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.
31
*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.
32
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.
33
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.
34
What are the lapse/ anti-lapse rules?
1. When a benificiary named in the will or revocable trust dies before the T, the gift lapses, UNLESS
2. It is saved by the state's anti-lapse statute.
3. In FL, the anti-lapse statute applies when the predeceasing beneficiary is the T's grandparent or descendent thereof who leaves issue.
4. Gift goes to issue. (It does not matter if predeceasing beneficiary's will leaves all to her husband -- follow anti-lapse statute).
35
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.
36
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.
37
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.
38
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.
39
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.
40
What is a general legacy?
Gift of a specified pecuniary amount.
E.g., I give the sum of $10,000 to my daughter, Donna.
41
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.
42
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?
1. property passing by intestacy
2. residuary devises and bequests
3. property not specically or demonstratively devised (general legacies)
4. specific and demonstrative gifts
43
What type of gifts does ademption apply to?
specific only
44
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.
45
What are the two FL rules that vary from common law to take the edge off of ademption?
1. If will executed before T declared incompetent: If specificially devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, specific devisee has a right to a GENERAL LEGACY equal to the net sale price, condemnation award, or insurance proceeds unless T's disability has been adjudicated to have ceased and T survives the adjudication by one year. (Wrote the will while competent, now incompetent, don't want the stuff that happened while incompetent to mess w/ the will).
2. A specific devisee has the right to the remaining specifically devised property AND
1. any balance of purchase price owing from purchaser when contract is still executory at T's death. (J gets any payments due from Mary under the contract to sell BA to Mary if she still owes payments on the sale)
2. Any amount of condemnation award for taking the property, to the extent unpaid at T's death.
3. any amount of fire or casulaty insurance proceeds unpaid at death.
4. property acquired as a result of a foreclosure of a security interest on a specifically devised note.
46
I give and bequeath my Rembrandt painting to my daughter Dora. The Rembrandt painting is incinerated in 2012. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?
No, Dora is adeemed. The incompetency statute doesn't come into play. Any amount of fire or casualty insurance UNPAID, but here he lived long enough to collect the insurance.
47
What is the rule if the specific bequest increases?
E.g., T bequeaths his 100 shares in Acme stock to his son, Simon. At the time of death, T owned 200 shares, consisting of the 100 he owned at the time he executed the will and an additional 100 that were distributed via stock dividends. How many shares does the son take?
Son takes all 200.
Rule: Specific devisee takes any additional or other securities of the same entity owned by the T because of action intiated by the entity, excluding any acquired by exercise of purchase options.
48
"I bequeth my 100 shares in Tax Shelters, Inc. to my son, Simon."
Tax Shelters was acquired by Ling-Temco, and as part of the merger, each shareholder was given one share of LT for every two shares of Tax Shelters, Inc. At T's death he owned 50 shares of LT stock. Does Simon get the LT stock?
Yes. Specific devisee gets securities of another entity owned by the T as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.
49
I bequeath my 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker stock to B. Thereafter T sells all of her Coronado and Baker stock. Who takes what at T's death?
A: nothing. She is adeemed. Specific devise.
B: Takes 200 shares of Baker stock. Not a specific devise because no "my." Personal rep will take cash and purchase the stock to be given to B.
50
What is the rule re latent ambiguities in the will?
Extrinsic evidence is admissible to clear up latent ambiguity; if no evidence clarifies, goes to residuary.
51
I give $5,000 to my nephew, John Paul Jones. At the time T executed the will he had 2 nephews, one named James Peter Jones and one Paul Frederick Jones. T had never met nor corresponded with either nephew, and no nephew named John Paul Jones ever existed. Who takes $5,000?
Latent ambiguity: If no extrinsic evidence can clarify who the gift was meant for, then residuary takes.
52
What is the common law rule re mistake in a will? FL rule?
Common law: If mistake, follow terms of will anyway.
FL: Interested person can confvince the court that there's been a mistake by clear and convinving evidence. Court may reform the terms of a will, even if unambiguous, to conform to the terms of the T's intent if it is proven by clear and convincing evidence that both the accomplishment of the T's intent and the terms of the will were affected by a mistake of fact or law. In determining the T's original intent, the court may consider evidence relevant even though evidence contradicts an apparent plain meaning of the will.
53
Under the intestacy rules, the surviving spouse takes 1/2 of the estate if:
If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of another.
54
The portion of the estate not going to a surviving spouse is distributed to other heirs in the following order:
1. descedants, per stirpes (strict)
2. parents/ surviving parent
3. brothers & sisters & their descendants, per stirpes
4. one-half to paternal grandparents & one-half to maternal grandparents and their descendants, per stirpes (both halves to one side if other side has no takers)
5. kindred of the last deceased spouse, as if she had survived the decedent and then died.
Failing all above, estate escheats to the state.
55
T/F: You cannot disinherit your heir by fiat.
True: If there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will. You can disinherit heirs, but in order to do that, must leave the stuff to someone else.
56
The intestacy statute only applies to the probate estate. What is the probate estate? What is not included?
Probate estate = the estate that could have been controlled by a will had the decedent executed one.
Not included:
1. property passing by right of survivorship
2. property passing by contract
3. bank accounts or securities titled P.O.D. or T.O.D. form
4. property held in trust (inc. revocable trust)
5. property over which the decedent had a power of appointment.
57
A solvent heir or will beneficiary can disclaim his or her interest in a decedent's estate. Disclaimer can be ____ or _____. It results in the property passing as though _______.
total or partial
disclaimant predeceased decedent
**Note FL rule re when disclaiming must occur for tax purposes = must occur within 9 mos. after decedent's death.
58
Children born out of wedlock are heirs of the mother, but not of the father UNLESS:
1. he marries the mom
2. he is adjudicated the father before or after his death, or
3. he acknowledges paternity in writing
59
For purposes of intestate succession, adopted children are treated the same as ______ ______ of the adopting parents.
natural children
60
There is no inheritance in either direction between adopted children and their natural parents, EXCEPT:
1. where an adopting parent marries one of the natural parents
2. where the child is adopted by a close relative.
61
Generally, stepchildren and foster children have no inheritance rights unless _____. However, the doctrine of _______ applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt him.
adopted by the stepparent or foster parent
adoption by estoppel
62
What is the rule in FL re posthumous children for intestacy purposes?
In FL, heirs conceived before the decedent's death but born thereafter inherit intestate property as if they had been born in the decedent's lifetime.
63
What is the rule in FL re half bloods for intestacy purposes?
Half bloods are brothers and sisters who have only one common parent. For purposes of inheritance by collateral kin, FL provides that half bloods take 1/2 as much as whole bloods, except where all collateral kin are half bloods. (most states make no distinction between 1/2 bloods and whole bloods).
64
What is the simultaneous death act?
When disposition of property (by will, intestacy, joint tenancy, etc) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.
65
T/F: In re to simultaneous death act, if one person survives even an instant more than the other, the act does not apply.
True in FL. Some other states require 120 hours.
66
What is an advancement?
A gift made to next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor's estate.
* At common law a substantial lifetime gift to a next of kin was presumed an advancement. In FL, 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, amount is added back into pot for purposes of determining shares, then subtracted from recipient's share.
67
In FL, no gift is considered an advancement unless
1. declared in writing by the decedent OR
| 2. acknowledged in writing as such by the heir.
68
A lifetime gift is not prepayment of any interest under a will (satisfaction) UNLESS:
1. the will provides for this treatment
2. the T declares in contemporaenous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or
3. the devisee acknowledges in writing that the gift is in satisfaction.
69
What rights of a surviving spouse take precedence over creditors?
1. HOMESTEAD exemption (160 acres outside, 1/2 acre if within limits)
2. Exempt PERSONAL PROPERTY: SS and MINOR children are entitled to $20,000 worth of tangible personal property (furniture, etc.), 2 autos used as family autos, and all qualified tuition programs UNLESS, in each case, these items were specifically devised to someone else.
3. FAMILY ALLOWANCE: Up to $18,000 for support of surviving spouse or lineal heirs (ascendants & descendants) whom decedent was obligated to support or was actually supporting. Purpose is to provide support while assets tied up in probate.
* These are all over and above (1) property given to spouse by will, (2) elective share award, or (3) intestate share of surviving spouse (or minor children).
70
If facts of question involve husband & wife, you will want to discuss:
1. Homestead, personal property, and family allowance exemption
2. Pretermitted spouse?
3. Spouse's right to claim elective share
71
In most states, marriage following execution of a will has no effect on the earlier will. In FL, however, pretermitted spouses take an INTESTATE SHARE unless
1. waived in a pre or post nuptial agreement
2. the will makes a gift to the spouse in contemplation of marriage
2. the will specifically discloses an intention not to make a provision for the spouse.
72
What is the surviving spouse's elective share?
30% of the decedent's elective estate. The elective share is inaddition to the spouse's right to exempt property, family allowance, and homestead.
73
What property makes up the elective estate?
The elective estate consists of the decedent's probate estate and various nonprobate assets such as:
1. D's interest in POD or survivorship accounts or securities
2. D's interest in property held in JT w/ right of survivorship or in TIC.
3. revocable trsuts
4. irrevocable transfers to the extent that the decedent retained a right to income or principal
5. the net cash surrender value of the decedent's life insurance
6. death benefits from a pension; or
7. property transferred within one year before death or in satisfaction of the elective share. (death bed gifts in excess of $14,000).
74
What is the procedure for making an elective share election?
Must be filed on or before the earlier of:
1. 6 months after the service of a copy of the notice of administration on the SS or an attorney in fact or guardian of the property of the SS, or
2. 2 years after the D's death.
75
The right of election (elective share) may be exercised by the SS, her ______, the holder of a ______ family power of attorney, or if she is incapacitated, by _______.
attorney
durable
the guardian of her property
76
If the SS dies without having made an election (elective share), the right ______. However, the right to an elective share is not lost if she dies _________, but before the court determines the amount of the elective share.
dies with her
after filing the notice of election
77
The elective share amount is reduced by the value of any property passing from the decedent to the spouse by:
1. will
2. right of survivorship
3. as beneficiary of securities or bank accounts titled POD or TOD form,
4. as beneficiary on a life insurance contract, or
5. as beneficiary of an elective share trust
*Elective share trust: Trust created by the D for spouse's benefit. Spouse must have teh right to income for life. If trustee has power to distribute principal for the spouse's health, support and maintenance, reduce elective share by an amount equal to 80% of the value of the trust. If the trustee has no such power, reduce elctive share by 50% of the value of the trust.
78
The right of election, right of pretermitted spouse, right of SS as intestate successor, and rights to homestead, exempt personal property, and family allowance, and riht to preference in appointment of personal represetative can be waived by _______ before or after marraige. Consideration is _______. If before marraige, disclosure is __ required; if after marraige, each spouse must make a _________.
written agreement
not
not
fair disclosure of his/her estate
79
Tom died on 1-5-2002, leaving a net estate of $200,000. Prior to his death, Tom had created a revocable trust. The property in the trust was worth $1 million at Tom's death. Tom never married until his marriage to Mary about 6 mos. before his death. Tom's will, executed in 1997, leaves his $200,000 estate to his revocable trust. The trust provides that all trust property, including the property added to the trust under Tom's will, is to be divided equally between Tom's brother Darryl and his sister Sal.
1. What share of Tom's estate is Mary entitled to as a pretermitted spouse?
2. Should Mary claim an elective share instead?
1. She's entitled to the intestate share of the probate estate (here $200,000 b/c no descendants).
2. Yes, because 30% of the $1.2 million = $360,000, which is more than $200,000.
She can't have both.
80
A pretermitted child is born or adopted _____.
after the will is executed.
81
A pretermitted child is entitled to take _______. UNLESS:
an intestate share (what the child would have taken had there been no will at all).
*We treat this as if failure to provide for the child was unintentional.
UNLESS:
1. it appears from the will that omission was intentional.
2. H had other children at execution and substantially all estate left to parent of pretermitted child.
82
What is an intestate share?
The portion that would be taken had there been no will at all.
83
What is the effect of a codicil on a wife or child's status as pretermitted?
The codicil re-dates the will to teh date of the codicil, so if the codicil was executed after the marriage/ birth of hte child, then wife/ child does not qualify as pretermitted.
84
A person who _____ and ______ kills the decedent is not entitled to any benefit from decedent's estate by will, by intestacy, as beneficiary of a revocable trust, life insurance contract, or otherwise.
How does the property pass?
unlawfully or intentionally
Property passes as if killer predeceased decedent.
Jointly held property with right of survivorship passes half to killer and half as if killer predeceased decedent.
* Note: negligence/ involuntary manslaughter doesn't count.
* Note: acquittal at criminal law is NOT controlling because this is a civil standard -- preponderance of the evidence.
85
Who has standing in a will contest?
Anyone whose share of the estate would increase if the will contest were to be successful.
86
What are the grounds for will contest?
1. defective execution
2. valid revocation
3. lack of testamentary capacity
4. undue influence
5. fraud
6. mistake
87
Testamentary capacity must exist _____, and need not continue to exist as of the day of death.
at the time a will is executed.
88
The burden of introducing evidence that T lacked mental capacity is on the _______.
will consent
89
T/F: Adjudicated insanity necessarily means that teestatmentary capacity does not exist.
False. Evidence, but not conclusive.
B/C: Test for whether a person needs a guardian is different that test for testatemtary capacity AND, jury could find that T executed during a lucid moment.
90
What is an insane delusion?
A distinctive form of testatmenary incapacity: where T is otherwise sane, but the will (or a gift in the will) is the product of an insane delusion, having no basis in fact or reason, which T adhers to against all reason and evidence, and where the will (or a gift in the will) is the product of the insane delusion.
91
To establish undue influence contestants must show that:
1. influence was exerted
2. effect of the influence was to overpower the mind and free will of the T
3. 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 who was in a confidential relationship with T and who was active in procuring the will.
92
Influence is presumed if _______.
the will makes a substantial gift to one in a confidential relationship with T and who was active in procuring the will.
93
T/F: Mere pleading, begging, nagging, cajoling, even threatening do not constitute undue influence.
True: the free will of the T must be destroyed.
94
What is a no-contest clause? Is it enforceable in FL?
No-contest clause = "Any person who contests this will shall forfeit his legacy."
No, not enforceable in FL.
95
A successful contest on grounds of fraud requires:
That T have been willfully deceived as to
1. the character or content of the instrument
2. extrinsic facts that would induce the will or a particular disposition
3. with respect to facts material to a disposition.
*If a T is fraudently prevented from creating a will, some courts will impose constructive trust against those who would take by intestacy in favor of those who would take had the will been made.
96
What are the 3 types of will administration?
1. Disposition w/out administration: no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills.
2. Summary Adminstration: estate less exempt property ($20,000 + autos) is less than $75,000.
3. Full administration: All other estates.
97
A decedent's estate is administered _____. (where?)
in the county where the decedent resided at death
98
Administration begins _____ (when?)
when any interested person (beneficiary, heir, or creditor) files a petition for administration.
99
What is a caveator?
A person who is worried that an estate will be administered or a will admitted to probate without their knowledge and who file a caveat with the circuit court.
* Creditors may file only after D's death. Others can file anytime.
100
Once a caveat is filed, no will can be admitted to probate without _______. Additionally, notice must be given of any _______. Persons with a __________ the decedent's will are entitled to ______.
notice being served on the caveator
petition for administration
sufficient interest to contest D's will
formal notice (by registered or certified mail)
101
A personal representative will be appointed to ______.
manage the estate during administration
102
The personal representative is issued ________ as evidence of his authority to administer the estate.
letters of administration
103
It is the duty of the personal representative to:
collect the decedent's assets
pay off any creditors and
distribute the balance to those entitled to it
104
Who is eligible to be a personal representative in FL?
Florida banks
Persons 18 or older who have not been convicted of a felony
If person not resident of FL, must be relative of decedent. (or spouse of relative)
105
What is the order of preference for appointment of personal representative for a testate decedent? For intestate decedent?
Testate:
1. the person nominated in the will
2. the person selected by a majority of the will beneficiaries
3. beneficiary selected by the court
Intestate:
1. surviving spouse
2. person selected by a majority in interest
3. the heir nearest in degree
106
Unless waived in the will, a personal representative (other than a bank) must file a ______ to secure the faithful performance of her duties.
bond
107
Generally, a personal representative has __________ and may act ____ court authority in the exercise of those powers. 2 Exceptions:
all powers necessary to the proper administration of the estate
without court authority
Exceptions:
1. Court order is necessary to sell real property or to continue the operation of the decedent's unincorporated business for more than 4 months.
2. For wills executed before 10-1-1987, joint personal reps must act by UNANIMOUS consent. After that date, MAJORITY rule.
A PR who objects in writing cannot be held liable for the actions of the majority.
108
What are the personal representative's duties in re to creditors?
1. Publish a notice to creditors for 2 consecutive weeks in a newspaper in the county where the estate is administered.
2. PR must mail actual notice to all reasoanbly ascertainable creditors.
109
What are the persona representative's duties in re to notice of administration?
PR must serve a copy of the notice of admin. on the decedent's spouse and beneficiaries.
A copy must also be served on the trustee of the D's revocable trust (if any) and any person who might be entitled to exempt property.
110
Within _____ days, of the issuance of his letters of administration, the PR must file a written inventory of the assets of the estate.
60 days
111
What are creditors time limits?
If no notice: within 2 years of D's death.
If notice is published, 3 months from the first date of publication.
EXCEPT, creditors who are entitled to actual notice have 30 days from the date of the actual notice even if that extends beyond the normal 3 month period.
112
What is the order of priority for creditors?
1. expenses of admin
2. funeral expenses up to $6000
3. medicaid claims and ebts/ taxes w/ preference under federal law
4. reasonable and necessary medical expenses for the last 60 days
5. family allowance
6. child support arrearages
7. post-death expenses of continuing decdent's business not to exceed assets of the business
8. all others
