Trusts/Wills

Question 1

Trust?

Answer 1

fiduciary relationship where

a trustee holds a legal title to property

for benefit of trust’s beneficiary

• Creation: (1) someone (grantor/settlor/donor/testator) transfers legal title to property to trustee, who administers trust in accordance w/ settlor’s wishes for benefit of beneficiaries
• Not a bailment [deliver goods to a bailee, w/o transfer of ownership]

Question 2

Types of Trusts:

Express vs. Implied?

Answer 2

Express trusts: from property owner’s intention; 2 types:

1. Private express trusts
2. Charitable trust

Implied trusts: created by operation of law (trusts are equitable remedies.); 2 types:

1. Resulting trusts: places prop in hands of rightful owner when circumstances require it, even though there has not been any wrongdoing on anyone’s part
2. Constructive trusts: deprives wrongdoer from retaining improperly obtained prop. (Result of fraud or unjust enrichment)

Question 3

Parties to a Trust?

Answer 3

Settlor

Trustee (legal interest in trust property)

Beneficiary (equitable interest in trust property)

Question 4

Settlor?

Answer 4

creates trust by transferring assets to a trustee AND

manifest intent to create a trust relationship

Question 5

Self-settled trust?

Answer 5

Person who created the trust, Settlor, is also a beneficiary of the trust; aka “settlor’s ‘declaration of a trust’“

• A spendthrift or discretionary provision will not bar any of the settlor’s creditors; When there’s a self-settled trust, the settlor’s creditors can reach the maximum amount that can be distributed to or for the settlor’s benefit.
• Declaration can be oral, unless trusts assets include real prop [SoF requires writing], but need proof prop being held in capacity as trustee

Question 6

Trustee?

Answer 6

legal owner of trust property, who holds it for benefit of beneficiaries

• Legal title to, responsibility for, and the management of the trust property resides in the trustee
• Must always be a beneficiary that can enforce the trust against the trustee

1. Settlor can be the trustee, if there is a beneficiary in existence who can enforce the trust against the trustee.
2. Settlor may also be the beneficiary of the trust.
   
   • However, settlor cannot be the only trustee & beneficiary, because there is no one to enforce the trust against the trustee. [b/c can’t enforce obligation against yourself]
   • If a sole trustee is the sole beneficiary, the trust will collapse because the interests will merge.

• Failure to designate a qualified trustee won’t necessarily destroy the trust.

Question 7

Trustee Duties?

Answer 7

1. fiduciary of trust
2. must be given some active duties to direct him with respect to trust property in order for trust to be valid; w/o active duties: it is a “passive” or “dry” trust, and title to the trust assets will pass directly to the beneficiaries
3. Duties do not have to be spelled out, but need a direction that a court could reasonably interpret his duties

No trustee designated/incompetent/dies: court will generally appoint a trustee …only time courts won’t step in is if settlor stated otherwise …”don’t replace”

Question 8

Co-Trustees?

Answer 8

2+ persons have been named as trustees,

deemed joint tenant

• will may override this & name a successor trustee
• Co-trustees who are unable to reach a unanimous decision may act by majority decision
  
  • Losing trustee may formally dissent, and avoid liability [filing notice of dissent]

Question 9

Beneficiary?

Answer 9

the equitable owners of the trust property

Question 10

General Rights of the Parties in a Trust?

Answer 10

1. Rights of Settlor: no longer owns assets; therefore, no rights exist
2. Rights of Trustee: adhere to the terms of the trust with respect to the trust assets for the benefit of the beneficiaries; legal title to trust property
3. Rights of Beneficiaries: use and enjoyment of the property as distributed; equitable title to trust property

Question 11

A valid trust requires:

Answer 11

1. Present intent to create a trust
2. Delivery of trust property to the trustee
3. Ascertainable beneficiaries
4. Active duties for the trustee
5. Proper trust purpose [lawful]
6. Trustee

Question 12

Precatory Language regarding Trust Creation?

Answer 12

language insufficient to create a trust; precatory is defined as a request and trusts are demands/direction (e.g., these assets are given to Shayla in hopes[I would like] that she distributes them toward Asia’s college education)

• Exception: Even though the language is precatory, there is so much specificity, the courts will interpret it as mandatory. (Ex: $5000 to Asia. Joe would like Shayla to invest the money in an annuity that will pay $200/month to Asia.)

Question 13

To create a trust, a settlor must have _________ intent.

Answer 13

present intent

• Ex: “I will put $5000 in trust for Terry next week” does not create a trust. It is a mere promise not supported by consideration.

Question 14

If a trust states that it will name

the beneficiaries later, it is a _________.

Answer 14

resulting trust

• Resulting trusts: places prop in hands of rightful owner when circumstances require it, even though there has not been any wrongdoing on anyone’s part
• In Florida, if a trust fails for a lack of a beneficiary, then a resulting trust will be presumed in favor of the settlor or her successors.

Question 15

If the settlor does not own the trust property and then subsequently buys the property, is a trust created?

Answer 15

No

cannot have a present intent for unknown property

Question 16

What cannot be trust property?

Answer 16

1. mere expectations
2. unearned profits
3. debt owed by the trustee [can’t sue yourself]

There must be some certainty over what is the trust property.

Question 17

Must a trust must have ascertainable beneficiaries?

Answer 17

YES

1. “To my friends” is too vague.
2. “To my family” is also vague, but the courts will interpret it to mean heirs.
3. If Settlor provides objective standard by which to identify beneficiaries, then those beneficiaries are ascertainable.
   
   • a) Must provide a reasonable basis [Ex: Hold property in trust for “person who provided best health care for me before my death.”]
   • b) Court will defer to trustee’s discretion unless: its arbitrary, capricious or acted in bad faith
     • Trust may give trustee right to invade trust corpus for benefit of beneficiary subject to his discretion.
     • Trust may give partial or total discretion.

Question 18

Discuss Active Duties with respect to a trust?

Answer 18

• Must have active duties, if not it becomes “passive” or “dry” and that person must transfer legal title to beneficiary and end trust
• Duties do not have to be spelled out, but need a direction that a court could reasonably interpret his duties

Question 19

Trust Purpose?

Answer 19

CAN’T BE: illegal, violate R.A.P. or against public policy

• Against public policy: ex. (1) encourage divorce [can end trust based on a subsequent divorce]; OR (b) prevent marriage [unless it’s a SS]
• When trust purpose violates public policy:
  
  1. delete obnoxious language
  2. what would Settlor have wanted had he known provision was in violation of public policy

Question 20

Testamentary trust?

Answer 20

created by Testator’s valid will

• Even if a will is valid, there may be problems with trust.
• Wills frequently contain “pour over” provisions that direct the transfer of the decedent’s property into a trust established either by the testator during his lifetime or by another person.

Question 21

Totten Trusts?

Answer 21

Arrangement with a bank that allows the depositor to open a bank account in his own name, as trustee for other parties.

• Only right beneficiary has: take what is left in the account when the trustee dies, if the beneficiary is alive [allows the property to bypass probate]
• The account holder can use the account as she wishes during her lifetime (adding to, withdrawing from, or even closing the account).

Question 22

Limits on Trust Duration (Florida)?

Answer 22

• All trusts must comply w/ Rule Against Perpetuities–No interest is good unless it must vest, if at all, not later than 21 years after some life in being at the creation of the interest; OR
• The interest either vests or terminates within 360 years after its creation.

Question 23

Trustee owes a duty of _________________ to the beneficiaries in carrying out her obligations under the trust.

Answer 23

utmost loyalty and good faith

Question 24

Trustee is prohibited from?

Answer 24

1. Self-dealing [NO borrowing or lending/buying or selling assets to trust]
   
   • Any profits earned from self-dealing w/ trust belong to the trust.
2. Obtaining a personal benefit other than agreed upon or statutory fees as a consequence of his position
   • Bonus, fee, or other benefit for trust business is strictly prohibited. All free gifts recieved, e.g. free TV, must be deposited into trust
3. Conflict of interest with respect to trust & 3rd parties
4. Entering into transaction w/ beneficiaries of trust she is administering
   
   • Only be allowed if:
     
     • A) if all pertinent/mat’ facts known to trustee are disclosed
     • B) all transactions must be fair when viewed objectively (Even when dealing w/ non-trust assets)

Question 25

Affirmative Duties re: Trust Assets?

Answer 25

1. Trustee has affirmative duty to preserve and enhance trust property
   
   • Prudent Business Person Rule: trustee must use a degree of skill and care & prudence that would be used by a business person in his own personal affairs (Trustee w/ superior business expertise/professional fiduciary: held to their profession’s standard)
   • Trustee is obliged to attempt to utilize trust property in a productive manner; subject, at all times, to the obligation to be prudent.
   • Trustee should diversify the trust’s portfolio.
     
     • Acceptable items include: gov’t or highly rated bonds, mutual bonds
     • Investments that will be questioned include: penny stocks, commodities, derivatives
2. **Trustee generally may not delegate his duties **
   * Trustee MUST: be diligent in selecting his advisor for investment decisions & inform beneficiaries of the delegation.

Question 26

Trustee’s Liability?

Answer 26

totally accountable for

any loss that arises from his breach,

AND any benefit gained is to be given to the trust.

He may also be subject to punitive damages

Question 27

If trustee uses trust assets to buy property

and it increases in value, he must?

Answer 27

return both the trust property

and

the appreciation in value

Question 28

When a trustee breaches his duty of care in investing,

he must?

Answer 28

replace trust for lost value,

but he cannot offset money lost by money earned.

Question 29

A trustee will be ________ for any lost interest.

Answer 29

responsible

Question 30

A trustee ordinarily has no liability for breaches of duty by the trustee whom he succeeds, except where the successor-trustee is?

Answer 30

aware of bad transaction & doesn’t take steps to defend it

Question 31

3 ways a trustee can be relieved of liability for potentially wrongful acts?

Answer 31

1. Exculpatory clause: provision in a trust instrument relieving trustee of liability
2. Beneficiary had (1) full knowledge of material facts and (2) expressly approved of complained-of action by trustee, can ratify transaction, then trustee is NOT liable
3. Beneficiaries knew and said nothing: may be estopped

Question 32

Removal of Trustees?

Resignation?

Answer 32

1. Trustee may be removed for cause, such as a breach of duty or if he has become incapacitated. [not mere dislike]
2. Once Trustee has accepted appointment to his position, he can resign at any time, and a successor trustee: has all the rights of original trustee

Question 33

Are beneficiaries’ interests alienable?

Answer 33

freely assignable/alienable

(in absence of a restrictive provision to the contrary)

Question 34

Beneficiaries’ Interests:

Support?

Answer 34

directed to provide only

so much income and/or principal of the trust

as is necessary

for the latter’s support and for no other purpose

Question 35

Beneficiaries’ Interests:

Spendthrift provision?

Answer 35

states beneficiary cannot voluntarily transfer his property and a creditor cannot attack it. Makes it INALIENABLE.

These are not absolute & cannot be used to defeat a claim of:

1. alimony or child support
2. furnished necessities to beneficiary
3. gov’t to satisfy tax claims

Question 36

Settlor’s Interests?

Answer 36

has no interest in trust unless he has reserved it or has made himself a beneficiary of the trust

• Settlor cannot make his own interest subject to a spendthrift provision
• Settlors often reserve right to revoke the trust
  • creditor cannot force him to revoke, but a bankruptcy court could

Question 37

MODIFICATION OR TERMINATION OF TRUSTS:

Termination by Settlor?

Answer 37

1. Unless terms of a trust expressly provide that trust is irrevocable, settlor may revoke or amend trust.
2. Settlor may terminate an irrevocable trust: all of beneficiaries are in existence & agree to termination

Question 38

If the sole trustee becomes the only beneficiary?

Answer 38

The trust is terminated by merger

& beneficiary becomes owner of the trust assets

Question 39

MODIFICATION OR TERMINATION OF TRUSTS:

Termination by Operation of Law?

Answer 39

Trust terminated by operation of law where:

1. Accomplished by the mat’l purposes of the trust have become illegal, impossible, or impracticable;
2. Trust res has been consumed, destroyed or lost; or
3. Trust’s purpose have been fully accomplished

Question 40

MODIFICATION OR TERMINATION OF TRUSTS:

Administrative Deviations?

Answer 40

if unforeseen circumstances, frustrate or substantially impair a mat’l purpose sought to be accomplished by the trust ► trustee may deviate from administrative provisions as necessary to accomplish settlor’s purposes

• Administrative deviance doctrine may not, however, be used to change the beneficial interests in the trust.

Question 41

MODIFICATION OR TERMINATION OF TRUSTS:

Termination by Beneficiaries After Settlor’s Death?

Answer 41

After settlor’s death, trust can only be terminated before period specified by settlor has expired if approved by court based on whether

1. purposes of trust has been accomplished &
2. all beneficiaries approve such termination

spendthrift clause, then cannot terminate

Question 42

MODIFICATION OR TERMINATION OF TRUSTS:

Natural Expiration?

Answer 42

when trust was to be in operation for a specified number of years or until the occurrence of a prescribed event, and that period of time has elapsed of the incident has occurred, the trust will terminate

Question 43

TRUSTS ARISING BY OPERATION OF LAW:

IMPLIED TRUSTS:

Any time a resulting or constructive trust arises, it means?

Answer 43

the trust will end, because it has no duties or named beneficiaries [remedies given by courts of equity]

Question 44

TRUSTS ARISING BY OPERATION OF LAW:

IMPLIED TRUSTS:

Resulting trusts?

Answer 44

arise when: express trust

makes incomplete disposition of an equitable interest or

equitable interest fails after property is given to trustee

• Trust reverts back to settlor/his estate
• Florida: trust may be enforced by an individual named in trust instrument, or by court, to oversee the trust.
• A resulting trust creates a reversionary interest in the settlor

Question 45

TRUSTS ARISING BY OPERATION OF LAW:

IMPLIED TRUSTS:

Constructive Trusts?

Answer 45

an equitable remedy, whereby a trust is erected on holder of specific property to redress wrongdoing OR prevent unjust enrichment

• a) Typically imposed when property has been wrongfully obtained.
• b) Purpose is to oblige holder of property to divest himself of it & transfer it to the person entitled to that asset.
• c) In a possible answer: Say that a court will “raise,” “erect,” or “impose” a constructive trust.
• Ex: Widowed father tells Son that he will hold Son’s property for Son so that Son will not mismanage it while in college. Son transfers property to Father based on this promise. Father, however, needs the money for his new girlfriend. He later refuses to return the money to his son. Son can sue to have a constructive trust imposed over the son’s property that the father is holding. If the court imposes a constructive trust, the person holding the property, the constructive trustee (Father), has a duty to return the property to the person entitled to it, either the transferor or an intended beneficiary, in this case, Son.

Question 46

CHARITABLE TRUSTS:

Distinguishing Characteristics?

Answer 46

1. Charitable purpose
2. Indefinite beneficiaries
3. Exemption from RAP
4. Use of cy pres doctrine [trust doesn’t end]: court could allow trust to continue with a similar charitable purpose.

Question 47

CHARITABLE TRUSTS:

Charitable purpose?

Answer 47

1. relief of poverty
2. advancement of religion
3. advancement of education
4. promotion of health
5. other purpose that benefits the community

• Charitable purpose can be broad if trustee is constrained to use trust exclusively for that objective. [use money for charity]
• Distinguish b/w a charitable purpose & benevolent[kindly] purpose.

merely helping others is insufficient

Question 48

CHARITABLE TRUSTS:

Cy Pres?

Answer 48

If settlor’s exact charitable purpose cannot be carried out, court MAY direct application of trust property to another charitable purpose that approximates settlor’s intention.

• Cy pres FACTORS: (1) accomplished or impossible; & (2) settlor has shown a genuine charitable intent
• If settlor provided for “gift over” in event charitable purpose cannot be accomplished, this is ordinarily viewed as an indication settlor lacked a general charitable intent.
  
  • A non-charitable gift-over will likely fail as violating the R.A.P.
    
    • If it comes back to settlor as a resulting trust, it is vested at its inception & will not violate Rule Against Perpetuities.

Question 49

Decedent?

Estate?

Probate?

Non-probate assets?

Consanguinity?

Answer 49

• Decedent: deceased person
• Estate: real & personal property decedent leaves at death
• Decedent’s probate [administration]: process distributing assets of the decedent’s estate
• Probate: process of legally establishing the validity of a will before a judicial authority
• Non-probate assets: do not require a will or intestacy to pay to others upon death [joint tenancy, life insurance, pension plans, trusts]
  
  • Exception: life insurance policy beneficiary is decedent’s estate
• Consanguinity: blood relationship b/w persons

TIP: On Bar exam, distinguish b/w probate assets & non-probate assets.

Question 50

Testate?

Intestate?

Partial intestacy?

Heirs?

Issue/descendent?

Devise/legacy/bequest (to a devisee)?

Answer 50

• Testate: person dies with a will
• Intestate: person who dies w/o a will
• Partial intestacy: portion of Decedent’s estate is not testate
• Heirs: persons, including surviving spouse & state, entitled under statutes of intestate succession to property of Decedent
• Issue/descendent: all lineal descendants from an ancestor in any degree
• Devise/legacy/bequest (to a devisee): testamentary disposition of real or personal property [gift]

Question 51

Testacy proceeding?

Answer 51

proceeding to establish a will OR determine intestacy

• FL: Heir must survive Decedent by a single second to take as an heir or devisee [if not, treated as having predeceased decedent for purposes of succession]

Question 52

Order of Intestate Dstribution?

Answer 52

1. Surviving Spouse
2. Descendants
3. Parents
4. Siblings ► nieces & nephews
5. Grandparents ► Uncles & Aunties (1/2 goes to decedent’s paternal kindred; 1/2 goes to decedent’s maternal kindred)
6. In-Laws (widowed decedent’s stepchild may inherit through intestacy if Decedent had no relatives of his own to inherit)
7. Escheats to State

Question 53

INTESTATE DISTRIBUTION:

Surviving Spouse but NO Descedents?

Answer 53

SS takes entire intestate estate

Question 54

INTESTATE DISTRIBUTION:

Escheat

Answer 54

no party entitled to inherit under statute,

property escheats to the state

Question 55

INTESTATE DISTRIBUTION:

No SS or SS Not Entitled to Take,

then estate property passes in following order:

Answer 55

Pass in following order:

1. Survived by descendants: Intestate estate passes by representation [per capita] to decedent’s descendants, estate divided into as many equal shares as there are descendants
   
   • a) If descendants[multiple] predecease w/ their own descendants: descendants’ descendants in same generation nearest to decedent, will combine total shares of descendants’ into one share and split it evenly.
   • b) If descendant predeceases decedent and does not have descendants to take their share: its as though descendant was never born
2. Survived by only parents: intestate estate to parents to split equally
3. If the decedent is survived by neither spouse, descendant, nor parents: goes to ascendant’s descendant’s [by representation to brothers & sisters]
4. grandparents

Question 56

Special Problems of Intestate Distribution:

Adopted Children?

Answer 56

• Transplantation theory w/ regard to adopted children. Adopted child loses any relationship w/ natural parents & is treated as natural born child of adoptive parents. [adoptive parent become natural parents]
• Generally adopted person loses all rights to inherit from or through natural parents (birth parents)
• If a natural parent dies & child later adopted by surviving parent’s new spouse: child is still an heir of decedent & adoptive parent
• If natural parent remarries & consents to adoption of his child by his new spouse: adopted child has right to inherit from both of his natural parents and adoptive parent.
• Adoption by estoppel/Equitable/virtual adoption:
  • Person promised to adopt the child, allowed the child to live with her, treated the child as adopted, but died before adoption – child can inherit.
  • Must provide clear and convincing evidence
  • Does NOT block child’s right to inherit through birth parents

Question 57

Special Problems of Intestate Distribution:

Stepchildren?

Answer 57

have no inheritance rights unless they’re adopted,

Unless, can prove adoption by estoppel

• Adoption by estoppel: attempt to adopt thwarted by technical defect, or stepparent Ks w/ natural parents to adopt but for some reason does not

Question 58

Special Problems of Intestate Distribution:

Half-blood Relatives?

Answer 58

siblings of decedent by only one of his parents;

they take by representation in half [as child of one parent]

• Relative with only one common parent or grandparent
• Only collateral relatives can be half‐bloods
• When intestate decedent dies with both whole‐blood and half‐blood heirs:
  
  • Half‐blood heirs take 1/2 as much as whole‐blood heirs.

Question 59

Special Problems of Intestate Distribution:

Non-marital Children?

Answer 59

born out of wedlock, considered child of his mother & her kindred for purposes of the intestate inheritance

Father if:

1. Natural parents participate in marriage ceremony (even if marriage was void);
2. Paternity established in court; or
3. Father ackowledges paternity in writing.
   * Clear & convincing evidence man was father of child
   * Rebuttable presumption – child born in wedlock is child of mother’s husband.

Question 60

Special Problems of Intestate Distribution:

Posthumous Children?

Answer 60

person conceived before the decedent’s death but born alive thereafter, deemed alive at decedent’s death

• Must survive a second after Decedent’s death

Question 61

INTESTATE DISTRIBUTION:

Advancements?

Answer 61

[Inter vivos gifts to an heir by the decedent & dies intestate]

1. If a person dies intestate as to all or any part of his estate, property that he gave to an heir in his lifetime is treated as an advancement against the estate only if:
   
   • Acknowledged in a writing as an advancement by Decedent or heir.
2. If property an advancement: will reduce intestate share
3. If property recipient dies before decedent: property not taken into account in division & distribution of intestate estate

Question 62

Will?

Requirements?

Answer 62

doc. executed by Testator/Testatrix that takes effect on death of Testator/Testatrix

Requirements: [must be intended by testator to be a will &]

1. Capacity
2. Written
3. Signed by Testator
4. Attestation must occur via 2 witnesses or bring will before notary & have notary acknowledge signature

• usually disposes of a person’s property, but not necessary; may also be a codicil or testamentary instrument that: Appoints executor; Nominates guardian; Revokes/revises another will; Expressly excludes/limits rights of an individual to succeed via intestate succession

Question 63

A valid will must be:

Answer 63

1. WRITTEN; reasonably permanent record
2. Signed by testator OR in testator’s name by some other individual in testator’s conscious[earshot] presence & by testator’s direction [testator must request]; and
   
   • Sign end of the will & any name (w/ intent to adopt as Testator’s own doc)
   • Assisted signatures: do not require testator request/direction,
   • Publication: not required to tell anyone, not even witnesses
   • Harmless error rule: alteration will be validated if proponent proves by clear & convincing evidence that Testator intended alteration to constitute part of his will
     
     • Integration rule: all pages present at execution of will become part of will
3. Signed in presence of 2 witnesses (witness actual signing of will or acknowledgment of previous signature by testator or proxy)
   
   • Must sign will in presence of Testator AND in presence of each other.
   • Witnesses may sign anywhere on the will.
   • Any competent person may witness a testator’s signature on a will – even named beneficiary
4. Testamentary Intent: Testator must have a present intent to make the document his will.

Question 64

Probate the Will?

Answer 64

“validating” a will; probated will then becomes a legal instrument that may be enforced by executor/personal representative of the estate

• Probate is the process of transferring legal title to property from a person who has died to that person’s heirs or beneficiaries.

Question 65

Self-Proving Will?

Answer 65

will simultaneously/after execution & attested by acknowledgement of testator & affidavits of attesting witnesses, each made before an officer authorized to administer oaths & evidences by officer’s certificate, under official seal

• Self-proved will satisfies requirements for execution w/o testimony of any attesting witness, upon filing of will, acknowledgment & affidavits. Thus, it avoids problems w/ hostile or unavailable witnesses.

Question 66

Qualifications of Witnesses?

Interested Witnesses?

Answer 66

1. Ability to observe Testator affix his signature,
2. Coupled w/ ability to comprehend the nature of the act

Interested Witnesses: has a pecuniary interest in the will

• Under UPC: interested witness has no bearing on witness’s signature, but may give rise to implications of fraud, undue influence or duress

Question 67

Holographic Wills?

Answer 67

written by the testator, entirely in his own handwriting

• NOT VALID IN FLORIDA, even if validly executed in another state.

Question 68

Conditional Wills?

Answer 68

Testator may choose to make a particular gift, or a will, conditional on the (non-)occurrence of a specific event

• Condition must be clear on the face of the will
• Extrinsic evidence not allowed to make a facially valid will conditional

Question 69

Codicils?

Answer 69

an instrument executed subsequent to a will

that alters/explains/adds to/subtracts from/conforms the will

by way of republication.

[therefore, can be either holographic or attested, but must match original will]

1. A codicil, by its nature: refers to another document
   
   • As to the original will: republishes the will to which it refers [makes will as though written for the first time on the date of the codicil]
2. A validly executed codicil cures any defects in execution of original will

Question 70

Classification of Testamentary Distributions:

Specific bequest or specific devise?

Answer 70

gift that’s identified & distinguished from all other things of the same kind, and is satisfied only by the delivery of the particular thing

• use of possessive words (e.g., “my”) indicates that a specific legacy was intended.

Question 71

General devise?

Answer 71

one payable out of general assets of the decedent’s estate and not in any way separated or distinguished from other things of like kind

Question 72

Demonstrative bequest/devise?

Answer 72

bequest/devise of fixed sum to

be paid out of a particular fund

• Payable from a particular fund or from the sale proceeds of a particular item
• If fund or item are no longer part of the estate or insufficient to pay the devise: Devise will be satisfied out of the general estate.
• Ex: Tina’s will devises $5,000.00 to her cousin, Charles, to be paid out of the proceeds of the sale of her Acme Corporation stock. Even if Tina dies without owning any Acme stock from which to satisfy the gift to Charles, Charles will still be entitled to the $5,000 to be paid from the general assets of Tina’s estate because the gift is a demonstrative devise.

Question 73

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Elective Share

Answer 73

• Share surviving spouse is entitled to demand if unhappy with what she is receiving from the decedent’s estate (either through intestacy or will).
• May take elective share in addition to the right to homestead, exempt property, and family allowance
• 30% of the elected estate in Florida

Question 74

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Procedure for Election

Answer 74

1. SS must make her election w/in: 6 months after notice of administration or 2 years after Decedent’s death
2. Spouse can withdraw petition anytime before final judgement
3. May be filed by spouse or her attorney-in-fact
   
   • IF attorney‐in‐fact or guardian files petition, court must determine whether election is in spouse’s best interests.
4. must give notice of time & place set for hearing to interested parties
5. if notice given to all interested persons SS may petition court for an extension of time for making an election 9 mths after decedent’s death
6. court in the county of decedent’s domicile

Question 75

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Property Subject to Election?

Elective estate includes?

Answer 75

SS of a decedent who dies domiciled in this state has a right to an elective share amt equal to: 30% of the elected estate

Including:

• Decedent’s probate estate;
• Other property held in right of survivorship;
• Property in a revocable trust;
• Cash surrender value of insurance policies on the decedent’s life;
• Death benefits payable under retirement plans;
• Certain transfers within one year of the decedent’s death;
• Property transferred in satisfaction of the elective share;
• Property held in a discretionary trust for the settlor, or a trust where the decedent had the right to income or principal; AND
• Accounts or securities in “Pay on Death” accounts and decedent’s interest in accounts held in right of survivorship.

Question 76

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Satisfaction of Elective Share:

In absence of any provision in will,

elective share is satisfied as follows:

Answer 76

• Property passing to the surviving spouse
  
  • Includes:
    
    • Any devise to the spouse in decedent’s will;
    • Any share the spouse takes by intestacy;
    • Life insurance policies payable to the spouse;
    • Retirement benefits plans payable to the spouse; and
    • The value of property spouse is getting by right of survivorship or otherwise.
• Any balance is satisfied from the decedent’s estate or revocable trusts.

Question 77

Children Not Mentioned in the Will:

If Testator fails to provide for his child born/adopted after making his will–unless failure was intentional–receives?

Answer 77

1. After-born/adopted child: receives an intestate share [same amount would have received had estate been intestacy]
   
   • Exception: will devised all or substantially all of estate to other parent of omitted child and that other parent survives Testator
2. Testator had children living when will was executed & devised portions of estate to them, omitted after-born/adopted child entitled: share in portion of Testator’s estate devised to Testator’s then living children as if child had been given an equal share of that portion of the estate. [prior kids got gifts, then after born kid gets gifts too]
3. If Testator had living children at time of will’s execution but children received nothing: gets nothing [be weary that codicil republish the will …so if its republished w/o new kid then he gets nothing]

Question 78

INTERPRETATION OF WILLS?

Answer 78

Wills are always to be construed in accordance with the discernible will of the testator.

[intention of the testator governs]

Question 79

INTERPRETATION OF WILLS:

Integration?

Answer 79

proponent must show will offered for probate is actually the will that the testator intended to make, & no insertions or removals of pages from the will have occurred

Question 80

INTERPRETATION OF WILLS:

Incorporation by Reference?

Answer 80

UPC recognizes common-law doctrine of incorporation by reference, which permits inclusion by reference of unattested documents as part of a will if:

1. Writing was existence at the time of execution of the will;
2. Language of the will manifests this intent; &
3. Describes the writing sufficiently to permit its identification

Question 81

Wills & Estates:

Disqualifications:

Slayer Act?

Answer 81

Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the felonious and INTENTIONAL killing of any other person: may not receive any benefit as a result of Decedent’s death

• If NO murder conviction/charges brought: probate court may make its own determination based on greater weight of the evidence–lower standard of proof than in criminal case–regarding forfeiture.
• Slayer rule does not apply: accidental, reckless or negligent deaths
• Distribution of Property
  
  • 1) Estate property: deemed to have predeceased decedent
  • 2) Joint tenancy: loses right of survivorship, & joint tenancy converts to a tenancy in common [slayer keeps his half & other half distributed to decedent’s estate]
• Proceeds of Insurance: if slayer is beneficiary or assignee of life insurance policy of decedent, or joint policy holder, proceeds will be paid to the decedent’s estate or contingent beneficiary is one is noted
• Affects killer’s rights only – killer’s descendants may be able to take: By intestacy per stripes distribution or by application of the anti-lapse statute.

Question 82

Wills & Estates:

Effect of Divorce and Remarriage Upon Wills?

Answer 82

Both end heirship rights

[if not divorced & remarries then considered constructive divorce]

• Ex‐spouse is treated as if she predeceased the testator.
• Any provisions in favor of ex‐spouse are generally void.
• Remarriage of the parties does not revalidate the provisions voided by the dissolution or annulment.

Question 83

Wills:

Disclaimer of Property Interests:

For a devisee to refuse a devise?

Answer 83

file a formal disclaimer, in whole or in part, any interest in or power over property

• In order to be effective, a disclaimer must be: Be in writing or other record; Declare the disclaimer; Describe the interest or power to disclaim; Be signed by the disclaiming party; & Be delivered or filed
• It is permissible for a disclaimer to be only: partial
• It is impermissible to disclaim where: disclaimant is not barred by a written waiver of right to disclaim; disclaimant has not accepted the interest; disclaimant has not voluntarily assigned, conveyed, encumbered, pledged, or transferred the interest; or judicial sale of the interest has not occurred

Question 84

Wills:

Disclaimer of Property Interests:

Effect of Disclaimer?

Answer 84

• Disclaimer relates: back to date of death of decedent
• Disclaimant is treated as having: predeceased testator
• Two reasons people disclaim are: Beat the rights of the creditor &Taxes
  
  • Under the UPC, a disclaimer cannot be used: to abridge the right of any person to disclaim interest under another statute & do not affect the additional disclaimer requirements for inheritance tax or other statutory purposes [can’t use disclaimer to alter payouts; therefore, if you do disclaim heirs will still receive the same % of the estate]

Question 85

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Ademption by Extinction?

Answer 85

If, at time of Testator’s death, specifically devised property is NOT part of the testator’s estate, the gift adeems (fails)

• Ademption by extinction can only occur: in reference to specific request
• Ex: Tom Testator executes a will devising “my 5 antique cars” to Alan. If Tom dies owning the 5 cars, then Alan receives the entire collection. If Tom had sold 3 cars before his death, the specific devise partially adeemed by those cars, and Alan would receive only the remaining 2 cars. If Tom had no cars upon his death, then the entire specific devise adeems.

Question 86

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Conveyance of an Bequested Property?

Answer 86

If specifically devised property is sold, transferred or mortgaged by a conservator or agent acting by a durable power of atty for an incapacitated principal, the devisee has the right to general devise [pecuniary gift] equal to the sale price, unpaid loan amount, insurance proceeds, or the recovery

• Any amount due on property subject of specific bequest to a legatee, then legatee due to receive payments still due on the specific bequest after the decedent’s death
• Item no longer in existence, but there is a replacement prop then beneficiary gets replacement property

Question 87

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Ademption by Extinction:

Non-Ademption; Balance:

A specific devisee has a right to specifically devised property in the testator’s estate at the testator’s death and to:?

Answer 87

• Any balance of the purchase price, together with any security agreement, owe by a purchaser at the testator’s death by reason of sale of property;
• Any amount due for the condemnation of the property and unpaid at the testator’s death;
• Any proceeds unpaid at the testator’s death on fore or casualty insurance on or other recovery for injury to the property;
• Any prop owned by the testator at death & acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest of s specifically devised obligation
• Any real property or tangible personal property owned by the testator the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property

Question 88

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Ademption by Extinction:

Non-Ademption; Balance:

Stock?

Answer 88

• Dispositions of stock are often troublesome b/c it is unclear whether Testator intended a general or a specific bequest.
• If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive pronoun makes this a specific disposition of the identified shares (i.e., those the testator owns); if she owns none at her death, the bequest is adeemed.
• If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator owned no such shares at her death, the court interprets this as a general bequest, and Leonid is entitled to the value of 50 shares of Vladivos stock as of the date of the testator’s death.

Question 89

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Ademption by Satisfaction?

Answer 89

similar to idea of an advancement; it occurs when a testator makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with intent that provision of will be thereby satisfied [applies to general legacies]

• inter vivos gift may satisfy a will bequest: in part or in whole [full or partial]
• Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only if:

1. The will provides for deduction of the gift;
2. Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise; or
3. evisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise

Question 90

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Encumbered Property: No-Exoneration Rule?

Answer 90

If a person is given property under a will and the property is subject to a lien: the beneficiary takes the property subject to the obligation

• However, if Testator in the will specifies for the executor to pay the debt on the property: then property is taken free of the mortgage, but it must be specific language in the will to pay the debts on the particular prop, not simply “I direct my executor to pay all my debts,” b/c that will not address the mortgage issue its boilerplate …doesn’t amount to direct request to pay mortgages

Question 91

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Class Gifts?

Answer 91

exists when Testator makes gift to number of persons as group, and size of group cannot be determined until class closes

• Closing of Class—Maximum Membership: As a general rule: class closes on date the will becomes effective [testator’s death]
  1. Rule of convenience- person must be born before the period of distribution in order to share in class gift
  2. Distribution date: date when immediate or postponed class gift takes effect in possession or enjoyment

Question 92

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Lapse?

Answer 92

when a disposition fails b/c

the beneficiary predeceases testator

• Lapsed dispositions pass to the residuary estate, or, if there is no residuary provision, they pass by intestacy

Question 93

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Anti-Lapse Statute?

Answer 93

lapse of gift prevented, if intended beneficiary left descendants, then they take by representation, but beneficiary must be descendants, grandparents, or descendant’s of decedents grandparent’s

• Exception: testator specifies otherwise [e.g., Blackacre goes to Shayla & if she does not survive me then to Asia]
• If a gift does lapse: falls into the residue [IF THERE IS A RESIDUARY CLAUSE THEN THERE WILL BE NO INTESTACY, B/C IT ADDRESSES ALL THE DECEDENT’S PROPERTY]
• If there are multiple residuaries: if one dies [w/o heirs] then the remaining residuaries will split the amount
• If one residuary legatee slays the testator: slayer loses right & then the remaining residuaries will split the amount
• If the only residuary slays the testator: then residuary clause will fail and result in partial intestacy

Question 94

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Lapse:

CLASS GIFTS?

Answer 94

The UPC requires that words of survivorship for class gifts: need express language; therefore, need to state that “anti-lapse statute does not apply.”

Question 95

REVOCATION & REVIVAL OF WILLS:

Wills may be revoked by:

Answer 95

Revocatory act

Subsequent will

Divorce

• If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced: all will provisions in favor of ex-spouse are revoked, unless, evidence testator did not want provisions revoked

Question 96

REVOCATION & REVIVAL OF WILLS:

**Revocatory act **

Answer 96

1. A “revocatory act on the will” includes: tearing, burning, canceling, writing over, scratching out, obliteration, or destroying will of any part of it w/ intent to destroy [but it must be original not a copy]
2. Must be done w/ an intent to revoke will
3. If testator does not perform revocatory act, but directs another to perform act [by proxy]: it must be in conscious presence of & by direction of testator
4. Florida does permit partial revocation of a will or codicil by physical act.
5. Will that was in testator’s possession cannot be found or is found torn or otherwise destroyed: Presumption that testator physically destroyed will with intent to revoke it.

Question 97

REVOCATION & REVIVAL OF WILLS:

Subsequent will

Answer 97

1. Revocation by a subsequent will revoke prior will in its entirety or any part thereof
2. A will, duly executed and proved, that contains an express clause of revocation revokes all former wills.
3. If subsequent will does not expressly revoke previous will, execution of subsequent will wholly revokes previous will: if it is inconsistent with prior will [partial or whole revocation is dependent upon whether inconsistency affects a part or the whole]
4. Testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if: completely disposition of testator’s estate
5. If a subsequent will does not fully dispose of Testator’s estate, it will revoke the previous will: only to extent that it is inconsistent with prior will

Question 98

REVOCATION & REVIVAL OF WILLS:

Dependent Relative Revocation

Answer 98

Revoke a will in anticipation of a subsequent will, but the subsequent will is invalid the courts will reinstill the first will b/c it assumes a prefererence for will over intestacy

Question 99

REVOCATION & REVIVAL OF WILLS:

Revival of Revoked Wills

Answer 99

1. The general rule is that: once will revoked, it is no longer authoritative [1st will, then create a 2nd. If 2nd revoked it doesn’t go back to 1st], but it can be republished, re-stated or re-executed(sign it again) [revived]
2. However, it can be revived: if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that testator intended the previous will to take effect as executed
   
   • Republication can be made by: codicil, re-executing (simply resigning [re-attesting the will])
3. A codicil to a will: restates revoked will & makes it written as of the day of the codicil

Question 100

CONTRACTS TO MAKE A WILL; JOINT OR MUTUAL WILLS:

A contract to make a will or devise, or not to revoke a will or devise, or to die intestate, may be established only by:

Answer 100

1. Provisions of Decedent’s will stating material provisions of K;
2. Express reference in Decedent’s will to a K & extrinsic evidence proving terms of K; or
3. Writing signed by Decedent evidencing K

UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal.

Question 101

PROBATE OF WILLS:

Proof of Lost Wills?

Answer 101

1. If a will is traced to the testator’s possession & cannot be found after death: presumption that the will was revoked
2. If the will is not in possession of the testator: then presumption is not raised
3. Copies may only be used if the original will was in the hands of third party [atty] and that party has lost it

Question 102

NON-TESTAMENTARY TRANSFERS:

Gift: inter vivos transfers require:

Answer 102

donative intent, delivery & acceptance

Constitutes an irrevocable gift once accepted

Question 103

NON-TESTAMENTARY TRANSFERS:

Gift: causa mortis:

Answer 103

an inter vivos gift made w/ the understanding that the donee takes possession upon delivery, but does not acquire title unless donor dies of a feared imminent death

• Elements: (1) donative intent, (2) delivery & (3) donor must dies from an imminently feared death [not normal fear of death, but some dangerous impending matter]
• Delivery is mere possession until the death, when done obtains title

Question 104

WILL CONTEST?

Answer 104

**In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate on the ground that the will is invalid for some reason. **

The grounds for contest of a properly executed will are:

1. Lack of testamentary capacity
2. Undue influence
3. Mistake: very little a court will do
4. Fraud: if can be proven will not be given affect

Question 105

WILL CONTEST:

Lack of testamentary capacity?

Answer 105

• Lack of sound mind & memory
• An insane delusion is defined as: mere figment of the imagination or a belief that is so against the evidence & reason that it must be the product of derangement

1. A person who suffers from an insane delusion is not necessarily deprived of capacity to make a donative transfer.
2. A particular donative transfer is invalid, however, to the extent: that is was a product of an insane delusion [leave my estate to the Peter Pan, because we both can fly]
3. Mere eccentricity does not constitute an insane delusion. Similarly, a suspicion with some basis in fact is not an insane delusion.

Question 106

WILL CONTEST:

Undue influence?

Answer 106

sufficient to void a will if: wrongdoer exerted such influence over donor that it overcame donor’s free will & caused donor to make a donative transfer that donor would not otherwise have made

undue influence: only invalidates portion unduly influenced

Question 107

WILL CONTEST:

Undue influence:

Presumption of Undue Influence?

Answer 107

1. reliant[need your help], dominant-subservient[control over] OR confidential relations AND
2. suspicious circumstances surrounding the preparation, formulation or execution of the will

Relevant factors:

• Extent to which donor was in weakened condition
• Extent to which the alleged wrongdoer participated in preparation of will
• Did testator receive independent advice from an atty or competent disinterest party
• Created in secrecy or haste

If these factors are shown by clear and convincing evidence, the burden of proof returns to the proponent of the will to show that the gift or bequest was not the product of undue influence.

Question 108

WILL CONTEST:

Undue influence:

Fraud?

Answer 108

*if can be proven will not be given affect *

• If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud then falls into the residue, or, if there is no residuary clause, passes by intestacy.
• If the entire will is tainted, all the property will pass by intestacy.

Question 109

WILL CONTEST:

Ambiguity?

Answer 109

uncertainty in meaning of a portion of the will

• Once an ambiguity, patent or latent, is established, both direct and circumstantial evidence of the donor’s intention may be considered in resolving the ambiguity in accordance with the donor’s intention.

Question 110

WILL CONTEST:

Standing to Object to Probate or Contest the Will:

Answer 110

an “interested” person [e.g., an heir]

Question 111

WILL CONTEST:

Restrictions on Testamentary Power:

In Terrorem Clauses:

Answer 111

Clause in a will that attempts to disqualify anyone contesting the will from taking under it; aka No-Contest Clauses

Unenforceable in Florida

Question 112

Cy pres?

Answer 112

doctrine that

permits the terms of a charitable trust to be modified by a court

to achieve a purpose “as close as possible” to Donor’s original intent

where the original purpose cannot be legally or practically achieved

Question 113

While there are three different parties to a trust (settlor,trustee, beneficiary), a trust does not require _________ to fulfill those roles.

Answer 113

three different persons

• A settlor can be both a trustee and beneficiary of a trust.
• A trustee may be a beneficiary of the trust.
  
  • However, the sole trustee CANNOT be the sole beneficiary.

Question 114

Trust:

Choice of Law?

Answer 114

A settlor is free to designate that the trust be governed by the laws of another jurisdiction.

Permitted so long as:

1. The settlor has a _SUFFICIENT CONNECTION _ to that jurisdiction, either when the trust is created or during administration of the trust; AND
2. It is not contrary*** to a ***STRONG PUBLIC POLICY in Florida.

Question 115

A court will review the following factors to determine whether a transferor of property intended to create a trust:

Answer 115

1. Relationship b/w transferor and transferee–is transferee someone to whom transferor would normally give an outright gift;
2. Relationship between transferor and purported beneficiaries–are purported beneficiaries persons for whom a settlor would naturally provide; &
3. Whether transferor gave sufficiently specific instructions*** to the transferee to ***create a fidicurary relationship.

Question 116

Florida law permits a court to appoint another person as trustee if original trustee cannot or declines.

Priority of order in appointing trustee:

Answer 116

1. Successor trustee named in trust document;
2. Person unanimously appointed by the qualified beneficiaries; and
3. Person appointed by the court.

Question 117

Alternating vesting period of trusts in Florida

under the Rule Against Perpetuities?

Answer 117

360 year vesting period for trusts

trusts created on or before 12/31/00,

the vesting period is 90 years

• For purposes of applying the RAP, An interest in an irrevocable trust is deemed to be created:
  
  • Irrevocable: at time trust was created
  • Revocable: interest is created at time trust becomes irrevocable – generally at the settlor’s death
• A purely charitable trust is not subject to the RAP.
  
  • A trust that contains both charitable and noncharitable interests may be vulnerable to the RAP.

Question 118

Florida law does ___ require a minimum amount of trust property.

Answer 118

NOT

Property may be added to the trust in the future, but that property will not be part of the trust until it’s transferred into the trust.

Question 119

Florida allows for the validity of unfunded trusts

under two circumstances only:

Answer 119

1. A trust is not invalid if the trust res consists only of trustee’s right to receive death benefits (e.g., proceeds from a life insurance policy, an annuity).
2. A devise in a will is not invalid b/c the only res of the trust is the possible expectancy of receiving that devise.
   
   • Will contained a “pourover” provision to an otherwise unfunded trust (e.g.,a devise in a will to an existing trust that has no assets).

Question 120

A trust or revocation of a trust

that was procured by ___________ is void.

Answer 120

undueinfluence,

duress,

fraud, or

mistake

• if only part of trust is affected, then that part is void
• challenge to validty of trust cannot occur until trust becomes irrevocable
• An action to challenge the revocation of an entire trust can only be commenced after the settlor’s death
• provision in a trust that would penalize a beneficiary for contesting the trust or instituting any actions related to the trust assets is unenforceable

Question 121

3 ways to create a Private Express Trust?

Answer 121

1. Transferring property to another person as trustee - trust created by transfer
2. Settlor holds property as trustee - a self-declared trust
   
   • Ex: Can create a trust by stating that I hold my necklace in trust for my son
3. Exercise of a power of appointment in favor of a trustee

Question 122

devisee?

devise?

Answer 122

devisee:

• person designated in will to receive a devise.
• trustee of a testamentary trust is a devisee of a will.

devise:

• gift in a will of real or personal property
• property is transferred to that trust as a devise under the settlor’s will.

Question 123

Semi-secret trust:

Answer 123

will indicates that a devisee is supposed to use devise for benefit of another person but will does not indicate other intended beneficiary

• Ex: A will includes a provision that states “$200,000 to Bill - and Bill is to use the property as I had instructed him to do so.” This is semi-secret because although testator intended a testamentary trust, he did not disclose an ascertainable beneficiary.
• The devise fails and reverts back to settlor

Question 124

Secret trust:

Answer 124

the will does not have any indication of a

testator’s intent to create a trust

• Ex.: The will provides $200,000 to Bill without anything further. There’s no indication that the testator intended to create a testamentary trust, although Bill might have promised the testator that he would use the money for someone else’s benefit.
• Devisee would get devise but the intended beneficiary may sue to impose a constructive trust.
• A will may be reformed to conform the terms to the testator’s intent is proven by clear and convincing evidence.

Question 125

Unlike a private express trust, the beneficiaries of a charitable trust must be ___________ unless the beneficiary is a charitable organization.

Answer 125

indefinite

Question 126

Who has standing to enfore a charitable trust?

Answer 126

not limited to beneficiaries like a private express trust

• settlor
• state attorney
• charitable organization named in trust
• NOT: Particular members of the community who may benefit from the charitable trust, even those who directly benefit from the trust (e.g., four needy law students), may not bring an action to challenge a charitable trust.

Question 127

Honorary Trusts?

Answer 127

1. Florida allows for the creation of a short-term trust referred to as a 21 year trust for non-charitable purposes.
   
   • These trusts do not require definite beneficiaries.
2. Trusts for the care of animals–not limited to “pets”-animals that are alive at the creation of the trust may be included as beneficiaries of the trust.
   
   • Additional animals may be added to trust during settlor’s lifetime only
   • Trust terminates upon death of last surviving animal that is a beneficiary of the trust.
   • Excessive funds or funds remaining at the termination of the trust are distributed to settlor if the settlor is alive, or to settlor’s estate.

Question 128

TRUSTS ARISING BY OPERATION OF LAW:

IMPLIED TRUSTS:

Purchase Money Resulting Trust?

Answer 128

arises when one person pays the purchase price for property but another person takes title to the property

• If person taking title to property has a close familial relationship to purchaser, i.e., spouse, parent, child, then GIFT presumed person holding title.
• If there is no such relationship, then it is generally presumed that the person holding title is holding it for the benefit of the PURCHASER: presumed purchase money trusts [therefore, creditors may step in]

Question 129

RULES AFFECTING BENEFICIARY’S INTERESTS:

Divorce and Annulment?

Answer 129

• Affects interests in a trust - but only in a REVOCABLE trust
• Rule: If a settlor of a revocable trust and his spouse divorce or annul their marriage, any provisions in the trust in favor of the ex-spouse are VOID and ex-spouse treated as if she died at the time of the divorce or annulment.
  
  • Florida law voids designations in favor of an ex-spouse in a life insurance policy, pay on death accounts, and other similar transfers.

Question 130

Effect of Discretionary Provisions on Beneficiary’s Interest

in a Trust?

Answer 130

Discretionary provision: When settlor gives trustee ability to make certain decisions regarding distributions in the trust

• Trustee’s discretion maybe limited by a standard–such as, health, education, and maintenance – often referred to as a support trust.
• A creditor – even a “special creditor” – cannot force distribution by the trustee nor attach a distribution.
  
  • The creditor will have to wait until distribution, if any, is actually made to the beneficiary.

Question 131

Trust Modification:

Multiple settlors power of trust:

Answer 131

One settlor may only revoke the portion of the trust that the particular settlor contributed to the trust

Question 132

Non-judicial Modification or Termination:

Irrevocable Trusts:

Unanimous consent of all Beneficiaries:

Answer 132

• Settlor or trustee’s consent not required
• Even if beneficiary is incompetent, minor child, or unborn, his consent is necessary
  • Guardian or guardian ad litem can agree on incompetent’s behalf
• If beneficiary’s consent is not obtained, it might not be required if termination or modification benefits that beneficiary.

Question 133

Qualified beneficiaries?

Answer 133

includes a current beneficiary, intermediate beneficiary, or a first line remainderman living at the time his qualification is determined

Question 134

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

Life Insurance Trust

Answer 134

• The policy holder may create a trust and transfer ownership of the policy to the trust.
• The policy holder may also retain ownership and name an existing trust or a testamentary trust as beneficiary of the policy proceeds.

Question 135

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

Uniform Transfers to Minors Act (“UTMA”)

Answer 135

• Florida authorizes creation of accounts under the UTMA.
• The donor names a custodian who holds and manages the property for the minor.
• The custodian is responsible for holding, investment, and spending the account assets for the minor beneficiary.
  
  • Must distribute the account assets to the minor upon termination

Question 136

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

Durable Power of Attorney

Answer 136

• A person, the principal, authorizes another person, the agent or attorney in fact, to act on behalf of the principal.
• Agent has authority to act on behalf of the principal while the principal is alive, even if the principal becomes incapacitated.

Question 137

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

Creating Durable Power of Attorney:

Answer 137

1. Must be in writing and signed by principal & 2 witnesses.
2. Principal’s signature must be notarized.
3. Must include the following or similar words:
   
   • “This durable power of attorney is not terminated by the subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes.”
   • Continues beyond principal’s subsequent incapacity

Question 138

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

TERMINATING Durable Power of Attorney:

Answer 138

• If principal is adjudicated incapacitated (i.e., court finds principal to be incompetent) power ceases unless court determines it shall remain in force.
  
  • Editor’s Note 2: For a nondurable power of attorney, the power of attorney generally terminates when the principal becomes incapacitated. However, for a durable power of attorney, the power of attorney does not terminate if the principal becomes incapacitated.
• Power terminates when principal revokes power or when principal dies

Question 139

WILL SUBSTITUTES AND DURABLE POWER OF ATTORNEY:

Powers of an Agent or Attorney in Fact:

Answer 139

only powers expressly granted in PoA & authority reasonably necessary to give effect to express grant of specific authority; authorized to act on from moment PoA executed

• May include powers to: Exercise stock powers of the principal OR Convey or mortgage the principal’s homestead
• These powers must be specifically enumerated in PoA (must be signed or initialed by principal):
  
  • Make certain gifts
  • Create an inter vivos trust
  • To amend, modify, revoke, or terminate a trust, but only if expressly authorized by both the trust and the PoA.

Question 140

A person dies intestate if the person dies:

Answer 140

• without a will
• with an invalid will
• With a will that fails to dispose of all the decedent’s probate property

Question 141

Testate Wills:

Operation of Law:

Children Born or Adopted after Execution of Will

Answer 141

Pretermitted child receives an intestate share.

• Exceptons:
  
  • child had received share as an ADVANCEMENT
  • parent’s will discloses an intent NOT to provide for the child; or
  • If testator had at least one other child at the time of execution of the will and the testator left SUBSTANTIALLY ALL HIS ESTATE PROPERTY to the other surviving parent of the pretermitted child.
  • Exam Tip: If the will includes a devise to “all my children,” this is a class gift and, thus, for these purposes, children born or adopted after the will was executed are included in the will. Keep in mind that only those children who survive the decedent will be entitled to take from the decedent’s estate

Question 142

Lineal Heirs?

Collateral Heirs?

Answer 142

Lineal

• Decedent’s descendants (such as children, grandchildren, great‐grandchildren, etc.)
• Decedent’s ascendants (parents and grandparents)

Collateral

• Persons related to the decedent by a common parent or grandparent
• Include siblings, nieces and nephews, aunts and uncles (related by blood, NOT marriage), and cousins

Question 143

Strict Per Stirpes?

Answer 143

Descendants of a deceased heir take person’s share by representation; FL uses a strict per stirpes system of distribution

• Estate is divided at generation nearest Decedent into as many shares as there are:
  
  • surviving members of that generation; and
  • deceased members of that generation who left surviving descendants.
    • Surviving descendants of each deceased heir take that heir’s share.

Question 144

INTESTATE DISTRIBUTION:

Surviving Spouse and Descendants:

If decedent and spouse neither have children from other relationships:

Answer 144

SS takes entire estate

Question 145

INTESTATE DISTRIBUTION:

Surviving Spouse and Descendants:

If the decedent is survived by his own descendant from another relationship:

Answer 145

SS takes 1/2 of the estate

Question 146

INTESTATE DISTRIBUTION:

Surviving Spouse and Descendants:

If Decedent has a descendant and there are other descendants who are either his from a different relationship or hers from a different relationship:

Answer 146

SS takes 1/2 of the estate

Question 147

INTESTACY:

Surviving Spouse:

Marriage Requirement:

Answer 147

• Must be married to decedent at time of decedent’s death
• Divorce or annulment extinguishes a spouse’s right to inherit from the decedent
  
  • Right to inherit remains even if the couple is separated or in the midst of divorce proceedings
• Florida does NOT recognize common law marriages entered into after 1/1/68.

Question 148

Wills:

Survival Requirements:

Two or more persons die under circumstances where it is difficult to determine who died first

Answer 148

Florida applies the Uniform Simultaneously Death Act

If decedent and beneficiary die simultaneously, decedent’s estate is distributed as if beneficiary predeceased the decedent.

• Same rule applies for distribution of insurance proceeds to beneficiary
• Also applies to property held as joint tenancy with right of survivorship or tenancy by entirety ‐ in effect, distributed as if a tenancy in common
• Must survive by 1 Second to survive decedent; proven by a preponderance of the evidence

Question 149

Florida only requires that a person survive the decedent by?

Answer 149

1 Second

Survivorship must be proven by a preponderance of the evidence

• Ex: Husband and Wife die in an accident. Their death certificates reflect the same time of death, as if they died simultaneously. If a witness from the accident scene testifies that Husband was dead but Wife had shown some signs of life, the witness’s testimony could overcome the presumption of simultaneous death.

Question 150

A Valid Will:

2 witnesses “Presence” standard:

Answer 150

• Scope of vision/line of vision standard: each person must be capable of seeing the other.
• Conscious presence standard: each party must be conscious of where the others were and what they were doing during will execution.

Florida has NOT established which standard applies.

• Exam Tip: Follow stricter scope‐of‐vision standard to ensure compliance with presence requirement. However, discuss both standards on exam.

Question 151

Self‐Proving Affidavit?

Answer 151

• Sworn testimony that the execution of the will complied with the required formalities.
• Requires notarized signatures of testator and witnesses
• May be signed at the same time the will is executed OR any time after
• NOT required for validity of will – establishes prima facie the formal execution and attestation of the will

Question 152

Testate Wills:

Operation of Law:

Testator marries after executing a will and dies without having amended the will

Answer 152

surviving spouse is deemed to be a pretermitted spouse

• Pretermitted spouse will receive intestate share.
• Exceptions:
  
  • Surviving spouse may waive rights to pretermitted share in a valid pre‐ or post‐nuptial agreement
  • Surviving spouse will NOT receive pretermitted share if the spouse was provided for in the will in contemplation of marriage
  • Surviving spouse will NOT be treated as pretermitted spouse if decedent’s will expressly or impliedly discloses intent NOT to provide for the spouse.

Question 153

Anti‐revival state?

Answer 153

A state–such as FLORIDA–that does not allow a will to be revived after a subsequent will revokes it.

• Ex.: A testator who revoked Will #1 by an express provision in Will #2 cannot revive Will #1 by revoking Will #2.

Question 154

How to revive a will?

Answer 154

1. Testator may re‐execute 1st will with the formalities required for will execution.
2. Republication by Codicil: Testator may execute a codicil which expressly refers to the first will – will effectively republish
3. Dependent Relative Revocation (DRR): when testator revoked a will by physical acts causing testator to die intestate

• Requires evidence testator would have preferred destroyed will rather than intestacy; AND testamentary scheme and that the decedent’s wills were substantially similar
• Last valid will that was destroyed is treated as if NOT intentionally revoked
• Generally applicable in two situations:
  
  • T validly executes Will #1, then Will #2. Both similar.
  1. T immediately destroys Will #1 thinking that Will #2 is valid.
  2. T immediately destroys Will #2 thinking that Will #1 will be revived.

Question 155

Residuary Devise?

Answer 155

Composed of all estate assets remaining after all other devises have been satisfied and all claims and costs have been paid

Question 156

CHANGES IN PROPERTY & BENEFICIARIES AFTER EXECUTION OF WILL:

Anti-Lapse Statute:

Class Gift Rule?

Answer 156

• If devisee is grandparent or descendant of grandparent, anti‐lapse applies to the class gift.
• Devise is given to the devisee’s descendants, per stirpes.
• Ex: Tammy Testator executes a will, devising $10,000 to her choral group. The group was made up of 4 friends and her cousin Cindy. If one of the friends predeceases Tammy, the remaining 3 friends and Cindy share the devise. By contrast, if Cindy predeceases Tammy, because Cindy is a descendant of Tammy’s grandparent, Cindy’s share will be distributed to Cindy’s descendants, if any, per stirpes, rather than to the remaining members of the choral group.

Question 157

Abatement?

Answer 157

reduction of an estate to pay claims against the estate, costs of administration, statutory shares, and other devises in will

• Order of abatement is a default rule (can be changed by testator).
• Property abates in the following order:

1. intestate property
2. residuary devises
3. General devises
4. Specific and demonstrative devises

• Estate will be distributed as follows:

1. Payment of debts,
2. Specific legatees, then
3. General legatees

Question 158

Florida’s Non‐Ademption Statute:

Answer 158

If property has adeemed, a specific devisee has right to any remaining specifically devised property & following:

• balance of purchase price & security interest unpaid at testator’s death by purchaser of property;
• amount of condemnation award for taking of property, unpaid at testator’s death;
• proceeds unpaid from testator’s death or casualty insurance on property; AND
• Property owned by testator at death as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation.
• Ex: Terry Testator specifically devises a second home she owns to her sister, Sara. Before Terry dies, she sells the property to Pat. Pat, however, does not have enough funds to fully pay Terry. Terry agrees that Pat will pay Terry $1,000 a month until payment in full. Pat gives Terry a promissory note and a mortgage on the property as collateral. Terry dies without having received full payment from Pat. Terry no longer owned the second home, so the specific devise to Sara adeemed. However, pursuant to the non‐ademption statute, Sara is entitled to the remaining payments owed by Pat and the mortgage on the property.

Question 159

Ademption by Satisfaction?

Answer 159

devise in a will is to be reduced by the value of an inter vivos gift from testator to beneficiary after execution of the will

• MUST be written
• Devise is reduced only if:
  
  • Will provides for reduction;
  • Testator acknowledges his intent in contemporaneous writing; or
  • Devisee acknowledges in writing that he accepts gift in full or partial satisfaction of his devise.
• Applies to ALL types of devises

Question 160

Ademption re: Securities?

Answer 160

• Florida also has a non‐ademption statute that applies to specific devises of securities.
• Also addresses an increase in securities that benefits a specific devisee (accession)
• Ex: Tony Testator executes a will with a specific devise of his 100 shares of Acme Corporation stock to Donna. Before Tony dies, Acme Corporation declares a 2 for 1 stock split – Acme’s actions convert each share of Tony’s stock to 2 shares. Therefore, Tony now owns 200 shares of Acme stock. Is Donna entitled to Tony’s 200 shares of Acme stock or will she only receive the 100 shares mentioned in Tony’s will? Because Tony specifically devised the shares to Donna, Donna gets the benefit of the stock split and receives the 200 shares under Florida’s securities accession rules.

Question 161

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Value of Election assets?

Answer 161

fair market value

minus claims, mortgages, liens, and security interests against the property

Question 162

LIMITATIONS ON TESTAMENTARY DISPOSITIONS:

Satisfaction of Elective Share:

Waiver of Right to Election:

Answer 162

Surviving spouse may waive the right to the elective share either before or after marriage by written contract, agreement, or waiver:

1. Signed by the spouse; and
2. In the presence of 2 subscribing witnesses.

Question 163

Florida Homestead Exemption?

Answer 163

• Protects homeowner or homeowner’s family from a forced sale of the homestead property by certain creditors
• Protects family from owner’s attempted transfers or disinheritance

Question 164

Homestead Property?

Answer 164

• Applies to real property; May be held in fee simple or lesser estate
• Covers only a limited number of acres
  
  • Within a municipality: 1/2 acre
  • Outside a municipality: 160 acres of contiguous land
• Property must be owned by a person
• Must be primary residence of owner or family
• Homestead protection:
  
  • Within a municipality: limited to only the house
  • Outside a municipality: extends not only to the residence but other buildings on the property (garages, barns, stables, etc.)

Question 165

HOMESTEAD, EXEMPT PROPERTY, AND FAMILY ALLOWANCE:

Exemption from Forced Sale:

Parties NOT exempt from forced sale exemption?

Answer 165

1. TAXES and assessments on the homestead;
2. Debts for the purchase or improvement of the homestead (mortgage loans or construction loans); and
3. Contractor/mechanic liens.

Question 166

Restrictions on Alienating Homestead Property:

Married vs. Unmarried?

Answer 166

• During lifetime – unmarried owner of homestead property may alienate the homestead by mortgage, sale, or gift.
• Married owner – may not transfer (sell, mortgage, or gift) the homestead without the spouse’s joinder (consent).
  
  • Exception: Married owner may execute deed to add spouse as tenant by entirety.

Question 167

Restrictions on Ability to Devise Homestead Property:

Answer 167

• Owner survived by minor: homestead CANNOT be devised at owner’s death (EVEN IF THERE IS A SS)
• Owner NOT survived by a minor, BUT survived by spouse: only valid devise of the homestead is to that spouse.
• Owner NOT survived by minor or spouse: can devise homestead to whomever he wishes

Question 168

Descent of Homestead Property:

Owner dies intestate or attempts invalid devise of homestead ‐ would descend by intestacy unless:

Answer 168

Owner is survived by spouse AND descendant(s):

• Surviving spouse gets life estate
• Descendant(s) get a vested remainder.

If spouse gets life estate & descendant(s) get vested remainder, spouse CAN choose to take 1⁄2 as a tenant in common – other 1⁄2 will go to descendant(s) per stirpes.

Question 169

FLORIDA EXEMPT PROPERTY?

Answer 169

• Homestead
• Forced sale of $1000 of personal property (In most states, homestead property is a real property concept. In Florida, personal property is also classified as “homestead” property to the extent that the total value of such property does not exceed $1,000. Fla. Const. Art. X, §4(a)(2).)
• Exempt property:
  
  • Household furniture, furnishings, and appliances – up to $20,000;
  • Two cars in decedent’s name (not used in trade or business);
  • All college prepaid tuition plans; and
  • death benefits for a child that is a dependent of a teacher killed on duty.
• Surviving spouse gets exempt property – if none, then decedent’s children.
• Property will NOT be exempt if already specifically or demonstratively devised in will.
  
  • If specifically (or demonstratively) devised to the spouse or if specifically (or demonstratively) devised to owner’s children if no spouse, the spouse or children could ask the court to declare it exempt from claims.

Question 170

HOMESTEAD, EXEMPT PROPERTY, AND FAMILY ALLOWANCE:

Family Allowance?

Answer 170

• Paid to surviving spouse and dependent lineal heirs (both descendants and ascendants)
• Amount: cannot exceed $18,000 in total.

Question 171

HOMESTEAD, EXEMPT PROPERTY, AND FAMILY ALLOWANCE:

Bigamy?

Answer 171

Spouse who enters a bigamous marriage is estopped from taking intestate share of first spouse’s estate

Question 172

HOMESTEAD, EXEMPT PROPERTY, AND FAMILY ALLOWANCE:

Spousal Rights Procured by Fraud, Duress, or Undue Influence:

Answer 172

• NOT entitled to benefits
• Spouse treated as having predeceased the decedent.
• Spouse is not barred from obtaining spousal rights if:
  
  • Decedent voluntarily cohabited with the spouse with full knowledge of the facts; or
  • Spouses otherwise ratified the marriage.

Question 173

BARS TO SUCCESSION:

Disclaimer

Answer 173

• Beneficiary voluntarily gives up rights to estate
• Beneficiary voluntarily gives up rights to estate.
• Treated as having predeceased the decedent
• Disclaimed property is distributed to other heirs by intestacy or to the next eligible taker under the will.
• Anti-lapse statute might apply.
• Cannot be used to avoid creditors or a federal tax lien

Question 174

WILL CONTESTS:

Burden of Proof

Answer 174

• Initial burden is on the proponent of the will
  
  • Generally the personal representative
  • Must prove formal execution and attestation
• Burden shifts to contestant
  
  • Must prove why will should NOT be admitted to probate
  • ANY interested person can contest

Question 175

WILL CONTESTS:

Lack of Testamentary Capacity

Answer 175

• Any person 18 y.o.+ OR emancipated minor (marriage or court decree) who possesses sound mind may execute or revoke a will or codicil
• Time of execution of a will or codicil: testator must understand nature and extent of his property; nature of objects* of his bounty (persons who would typically be expected to receive a part of the estate); AND *effect of the disposition of his property as specified in his will or codicil
• Burden is on person challenging the will
• Voids entire will

Question 176

WILL CONTESTS:

Insane Delusion

Answer 176

An irrational or unfounded belief to which testator adheres against all evidence and reason

• Exam Tip: Do not confuse lack of testamentary capacity with an insane delusion. Although similar evidence may prove both, a finding of lack of testamentary capacity voids an entire will; a finding of insane delusion may void an entire will or only a portion of will.
• Ex: Tessa Testator had only one child, Diane. Tessa executed a will devising all her property to her niece, Nancy, rather than to Diane. Tessa insisted that Diane had not visited her in 5 years. In fact, Diane visited Tessa on a monthly basis. Although Tessa may have testamentary capacity, Diane could seek to void the will, asserting that Tessa suffered from an insane delusion that caused her to devise her property to Nancy rather than Diane.

Question 177

WILL CONTESTS:

Undue Influence

Answer 177

Acts that amount to persuasion or coercion to such a degree

that Testator’s free will is destroyed

1. Influence was exerted on testator;
2. Effect of influence was to overpower testator’s free will; and
3. Influence was but-for cause of will or provisions in the will.
   * voids entire will or provision

Question 178

WILL CONTESTS:

Undue Influence:

Florida permits a contestant to raise a presumption of undue influence. Contestant must establish three elements:

Answer 178

1. Procurer is a substantial beneficiary under will;
2. Beneficiary in a confidential relationship with testator; AND
3. Beneficiary active in procuring the (provision) will.

• “Substantial beneficiary” – person who receives much more than she would have received in intestacy, under prior will, or more than others in same degree of relationship to testator.
• “Confidential relationship” – any relationship in which testator places trust in another person.
  
  • Not mere familial relationships OR confidential relationship between spouses
• “Active procurement” – court looks to factors including:
  • Beneficiary’s presence at time of execution; Beneficiary’s presence when testator expressed desire to make a will; Beneficiary’s recommendation of an anttorney to draft the will; Beneficiary’s knowledge of the contents of the will before execution; Beneficiary’s gave instructions to attorney on how to prepare the will; Beneficiary’s securing of the witnesses to the will; and Beneficiary’s safekeeping the will after execution.

Note3: A devise to a lawyer or a person related to the lawyer is VOID if the lawyer prepared the will, supervised the execution of the will, or solicited the devise, unless the lawyer or person related to the lawyer is also related to the testator.

Question 179

WILL CONTESTS:

Duress

Answer 179

Threat of harm or coercion against Testator

• Will executed under duress – (provision) will is voided.

Question 180

WILL CONTESTS:

Fraud

Answer 180

• Fraud in the execution: someone purposefully switches or changes a document for the testator to sign without the testator’s knowledge.
  
  • Will is voided.
• Fraud in the inducement: someone lies to the decedent so that the decedent will leave that person a devise.
  
  • Might not be voided
  • Remedy of a constructive trust or reformation of a will

Question 181

WILL CONTESTS:

No‐Contest Clauses

Answer 181

Unenforceable in Florida

Clause in a will that attempts to disqualify anyone contesting the will from taking under it; aka in Terrorem Clauses

Question 182

WILL CONTESTS:

Mistake

Answer 182

• Mistake in the execution VOIDS a will.
  
  • Ex: Testator signed a will in which the pages were mistakenly switched with the spouse’s will.
• Mistake in inducement – testator executes will based on mistaken belief in fact.
• Mistake in drafting (scrivener’s error) – may lead to an ambiguity in a will.
  
  • Latent (not ascertainable from reading the will) or patent (obvious from the face of the will)
  • Court must determine testator’s intent in interpreting an ambiguity.
• A will is generally NOT voided for mistake in inducement or scrivener’s error.
  
  • Court may reform a will to correct the mistake.
  • Reformation requires clear and convincing evidence of the testator’s intent.

Question 183

Probate and Administration:

Personal Representative?

Answer 183

Person that administers decedent’s estate upon decedent’s death

• Must first pay creditor’s claims and debts of the estate
• Required to publish a NOTICE TO CREDITORS in the newspaper
  
  • Must also serve a copy of the notice to all known and reasonably ascertainable creditors; creditors have 30 days after receipt of notice to file claims.
  • Unknown creditors ‐ 3 months to place a claim

Question 184

Probate and Administration:

Order of Preference for Appointment of Personal Representative:

Answer 184

Testate:

• Appointment in will governs
• If will is silent or person appointed is dead or does not want to serve: Majority in interest of devisees decide
• Any devisee may petition to be personal representative

Intestate:

• Spouse
• Majority in interest of heirs make decision
• Heir in the nearest degree may be appointed

Question 185

Probate and Administration:

Qualifications of Personal Representative:

Answer 185

Must be a legally competent Florida resident

• Non‐residents, if: Adoptive child or adoptive parent of decedent; Related by lineally consanguinity to the decedent; Spouse, brother, sister, uncle, aunt, nephew, niece, or related by lineal consanguinity to any such person; and Spouse of any of those persons.
• Entities may serve as personal representative (e.g., trust company, bank, or savings and loan institution).
• CANNOT BE: CONVICTED FELON, MINOR, OR Physically or mentally unable

Question 186

Probate and Administration:

Ancillary Administration:

Answer 186

Administration of an estate in a jurisdiction

other than where decedent is domiciled

• Florida resident has real estate in another state – ancillary administration is done in that state.
• Resident of another state dies owning Florida real property – ancillary administration is proper in Florida.
• Venue – where the property is located
• Rules of inheritance and distribution are the rules of the domiciliary jurisdiction (rules where decedent resided).
  
  • Testator could provide otherwise in his will ‐ i.e., specify that Florida rules apply

Question 187

Powers of Appointment:

Parties?

Answer 187

• Donor creates power of appointment
• Donee holds power of appointment
• Objects of the power: eligible recipients
• Taker in default: obtain property if the power of appointment is not exercised by donee

Question 188

Powers of Appointment:

Types of Powers

Answer 188

• General power of appointment: allows holder to appoint anyone as recipient (including herself, her estate, or creditors).
• Non-General (special or limited) power of appointment: holder cannot appoint to herself, her estate, or creditors.
• Power may be presently exercisable or only at the death of the donee (testamentary).

Question 189

Powers of Appointment:

General Residuary Clauseers

Answer 189

Does NOT exercise a power held by Testator

• Florida requires:
  
  • specific reference to the power; OR
  • other indication of intent to include property that is the subject of the power.

Question 190

When a person marries after a will,

the surviving spouse, or the pretermitted spouse,

recieves?

Answer 190

protected by receiving a share in Testator’s estate equal to what a surviving spouse would receive if Testator died intestate.

• Accordingly, the spouse would receive half the estate, or her intestate share, and the remainder would be distributed according to the terms of the will.
• Although a spouse may waive her right to a pretermitted share, such waiver must be signed and witnessed.

Question 191

When a beneficiary dies before the testator, or before the end of a period of time by which he was required to survive the testator under the will, the gift fails and goes to the residue unless the will provides for ____________. This is known as lapsing. Absent a _____________, the lapsed gift passes through intestacy.

Answer 191

an alternate disposition

residuary clause

Question 192

Florida law prescribes the following order of pro rata abatement to make good the deficiency:

Answer 192

1. intestate property,
2. residuary devises,
3. general devises, excluding those that are demonstrative, and
4. demonstrative and specific devises.

Question 193

Unless a will specifically provides for the deduction of a lifetime gift, a devise is adeemed by satisfaction through a lifetime gift in Florida only if:

Answer 193

• will specifically provides for the deduction of the gift;
• testator declares in a writing contemporaneous with the gift that the gift should be deducted from the devise (or is in satisfaction of the devise); or
• recipient of the gift acknowledges in writing that the gift is in satisfaction of the devise.

Question 194

Florida statutorily provides that the value of the gift is measured at the earlier of the following two:

Answer 194

• Receipt of the gift OR
• Death of the testator

Question 195

Types of Trusts:

Inter vivos vs. Testamentary?

Irrevocable vs. Revocable?

Answer 195

Inter vivos Trust: Created duringa settlor’s lifetime

Testamentary Trust: Created upon a settlor’s death; Created as part of the settlor/testator’s will

Irrevocable Trust: The settlor generally cannot revoke or amend the trust.

Revocable Trust: Settlor retains right to revoke or amend trust.

• Florida: trust presumed revocable, unless Settlor expressly states otherwise in the trust document.

Question 196

Personal representative?

Answer 196

executor; party that administers the will; entrusted with responsibility for winding up someone’s earthly affairs

• Age: must be 18 y.o.+ when executed
• Mental Capacity
  
  • Of sound mind: at time will executed, must have ability to understand:
    
    • Nature, condition, & extent of his property;
    • Nature of the disposition that he is making of his property; &
    • Names of his relationship to the natural objects of his bounty [who are the people that a decedent usually leaves his estate to]

Question 197

Testator & SS married after will executed, SS entitled to:

Answer 197

intestate share of estate, Unless testator did not plan to leave to anything for SS or non-probate gifts made in substitution for any gift in the will