Wills Flashcards
A person dies intestate if he?
- has never executed a will
- The will is invalid in whole or in part and
- The previous will has been revoked without executing a new one
What is a heir at law?
A heir at law is a person who is entitled to take the decedents property under the law of intestate distribution
If the decedent is survived by a spouse and no lineal descendent then?
The entire estate goes to the spouse
Spouse and lineal decedents of spouse
the entire estate goes to the spouse
spouse and descendants of spouse
half remaining estate to spouse
lineal descendants but NO spouse
equal shares to lineal descendants
parents but no lineal descendants
parents take the estate
siblings but No parents, lineal descendants or spouse
siblings take the estate in equal shares
no siblings, parents, lineal descendants, or spouse
state school fund
What are strict per stirpes? if predeceased the decedent
The estate is divided into shares at the root generation, which is the first generation after the decedent
If predeceased the decedent then that share will go to the lineal decedents of the deceased member
Adopted children is the child of whom?
The adoptive and NOT the natural parent and may inherit through his adoptive parents, and his adoptive parents may inherit through him
Does an adopted child lose their right to inherit from natural parents
yes
Can step or foster children inherit
Generally, No
What is an after born child
A child who was conceived before the decedents death BUT born after death, may inherit
A non marital child does not have the right to inherit from the father unless:
- The natural parents marry, before or after the birth of the child (even if the attempted marriage is void)
- Paternity is established by adjudication before or after the fathers death OR
- The father acknowledges paternity in writing
What are advancements
A transfer to potential beneficiary that occurs before the intestate death of the decedent
The value of the property is determined at the time that the advancement and NOT at the time of the decedents death
Florida Uniform Simultaneous Death Act
If it is not possible to determine which of the two persons died first, the property of each person will pass as if that person survived the other.
120 hour survival requirement
Florida has not adopted
Slayer statue
A person who feloniously and intentionally kills another person or procures the death of another person forfeits all death related benefits that the slayer would have derived from the decedent
What proof is needed for a slayer statute
A criminal conviction for murder is conclusive proof that the killing was felonious and intentional
A surviving spouse who is found to have procured a marriage from the decedent through fraud, duress, and undue influence is not entitled to any rights or benefits
- under the Florida Probate Code
- Bond/ life insurance/ contractual agreement
- Will/ trust/ power of appointment
- Any immunity from the presumption of undue influence
What is the Florida Uniform Disclaimer of Property Interests Act
An heir may disclaim an intestate share
If disclaimed, the property will pass as If the heir had predeceased the decedent
How can a disclaimer be enforced?
Must be made in writing, identified as a disclaimer, and describes the interest or power being disclaimed
A will
Is a document executed by a testator or testatrix that takes effect on the death of the testator or testatrix
A devise is
A testamentary gift of real property, in Florida is also known as a beneficiary
A devisee
A person to whom real property has been devised
A will takes effect
On the death of the testator
What is a testamentary intent
At the time of the execution, the testator MUST have present intent to make a will
Presumption: “Last will and testament”
What are the 5 formalities of a will
- Must be in writing
- Must be signed by the testator or another person at the direction of and in the presecnce of the testator
- Must be signed at the end
- In the presence of at least 2 attesting witnesses
- Witness must be signed in the presence of the testator and the other witness
A codicil is
A document that amends or revokes a will
Does FL recognizes will that were executed by non-reidents
Yes, as long as it complied with the will formalities of the state in which the will was executed
A holographic will? Can it be admitted in Florida
is a will that is entirely in the handwriting of the testator and signed by the testator, but lacking witnesses
No.
Florida recognizes a military will if it is executed:
- by a person who is eligible for military legal assistance
- in the presence of military legal assistance counsel and
- in the presence of two disinterested attesting witnesses
To challenge a will, must show that the will or a portion thereof was a product of 6 things
- insane delusion
- undue influence
- fraud
- duress
- mistake or
- tortious interference with an expectancy
The test for undue influence
- Whether such control was exercised over the mind of the testator
- So as to overcome his free agency and free will and
- Substitute the will of another and
- To cause the testator to do what he would not have otherwise have done but for that control
In Florida presumption of undue influence arises if the beneficiary who received the gift:
- Was a substantial beneficiary
- Had a confidential relationship with the testator and
- Was actively involved in procuring the will
The two types of fraud are
- Fraud in the factum and
3. Fraud in the inducement
Fraud in the factum occurs
when a person fraudulently causes a testator to execute a will without knowing the nature of the document
Fraud in the inducement
is still valid and enforceable and is not rendered void
Duress occurs when
A person uses threat of physical harm or coercion to cause a testator to execute a will. A will or a portion thereof is void if procured by duress
Mistake occurs when
A testator may be mistaken about the nature of the document that he had executed
In what 6 ways can a will be revoked?
- Writing
- Physical act
- revocation by operation of law
- Dependent relative revocation
- Revival of revoked will
- Lost will
Physical act of revoking a will occurs by
The burning, tearing, canceling, defacing, obliterating, or destroying of the document
Partial revocation by crossing out
Is not permitted in Florida
Negative will
Florida does not permit negative wills
A negative will is a will that expressly disinherits an heir
An in terrorem Clause
Not permitted in Florida, provides that a beneficiary will forfeit his gifts if he challenges the will.
What is a pour over trust and what are the 3 elements:
The testators will pours assets over into a trusts
- The trust must be established before, or concurrently with the execution of the will
- The trust must be identified in the testators will and
- The trust terms must be set forth in a written instrument
Lapse
a testamentary gift may lapse if the beneficiary predeceases the testator
Florida Residue Clause
If one named residuary beneficiary dies and is not protected by the anti lapse statute, the remaining residuary beneficiaries absorb the share of the deceased beneficiary
What are the 3 requirements to being a witness:
Any competent person may serve as an attesting witness. To be competent:
- Must be 18 years or older
- Witness must be able to observe and appreciate the testators act of signing the will (understand)
- Do not need to be disinterested
What are the two in the presence of requirements
- Line of sight and 2. Conscious presence
Line of sight
The testator and the witness must be able to see each other sigh
Conscious presence
The testator need not see the witnesses sign BUT must be conscious of the witnesses and their act of signing the will
An attestation clause
Is not required but if it is included it is prima facie evidence of the facts recited therein (important when witnesses cannot be found)
A self proving affidavit
A sworn statement attached to a will that stipulates that the will is in conformity with FL law
Can be signed at execution OR at a later date
satisfy requirements for attesting witnesses
May be admitted into probate without further proof
Nuncupative Will
Is an oral will
Not valid in Fl even if valid in state it was made
Testamentary capacity
- At least 18 or an emancipated minor
2. Sound mind
Sound Mind for testamentary capacity
- The nature and extent of testators property
- The persons who are the natural objects of the testators bounty
- The dispositions the testator is making and
- How the above elements relate to form an orderly plan for disposition
Testator and stock splits
Get certain securities rather than there value
Stock splits: if a specific devise of stock is intended, the the devisee get
- Whatever is in the estate at the testators death
- Additional stock acquired by a stock split or a stock dividend and
- Stock acquired through mergers and consolidations
Mortmain Statues
Unconstitutional in Florida
Charitable statutes that are made 6 months before the testator dies and the testator leaves behind a wife and lineal descendants are not invalidated
How much is a spouses elective share
30%
Uniform Disposition of Community Property Rights at Death Act
Florida is a equitable property state. This statue holds that there is a rebuttable presumption arises that the property is a community property if it was purchased during marriage while the spouse was domiciled in a community property state.
Pretermitted Spouse
A surviving spouse who married a testator after the testator executed his will. A surviving spouse may take an intestate share as a pretermitted spouse unless:
- Postnumptial or antenuptial agreement
- The will demonstrates an intent no to provide for the spouse or
- Spouse provided for in the will in contemplation of marriage
Pretermitted Child
A child born after the testator has executed his will. The child may claim part of the estate unless:
- Child has received a part of the estate
- Omission was intentional or
- Parent (alive) has all of the property
Exempt personal property
- household furniture up to 20,000$
- Two cars
- Florida pre paid contracts
Joint will
a single will executed by two or more persons
Mutual will
are two separate wills that have reciprocal provisions
patent ambiguity
the ambiguity is obvious from the face of the will. extrinsic evidence not allowed
latent ambiguity
the language of a will appears to be unambiguous on its face when describing beneficiaries or property but is actually ambiguous when applied to the facts to which It refers
To create a pour-over trust:
- the trust must be established before or at the same time as the execution of the will.
- The will must identify the trust, and
- the trust terms must be spelled out in writing.
Does the PR have a duty to inform creditors of the death of the decedent:
- personally notify all of John’s beneficiaries of death and 2. the probate of his estate, and
- to publish notice of probate in the appropriate newspaper.
A transfer will be an advancement if:
(1) the delivery of the advanced property is accompanied by a writing that states that the gift is to be counted against the recipient heir’s intestate share of the intestate estate; or
(2) the heir acknowledges in writing that he is receiving an advancement,
If the will includes a list that are distinct then
if there is a conflict in dispositions made by multiple lists, the list made “last in time” will govern.
A spouse may waive the right to receive:
(1) an intestate, elective, or pretermitted share;
(2) homestead protection;
(3) exempt property;
(4) family allowance; and
(5) the right to be given preference in the selection of the personal representative
Family allowance
up to $18,000, this is in addition to the spouses share of the esate
Under Florida law, the only requirement for witnesses is that the witness
be any person competent to be a witness.
ambulatory,
which means it may be revoked or amended at any time prior to the death of the testator
If someones only living relative is aunts and uncles on the mother and father side
each take a half interest to the property per side
