Wills Flashcards
INTESTATE SUCCESSION
When there is no will or trust
WHAT IS PER STIRPES
Even split at the first generational level
At the second generational level, that split is split evenly again, or not.
SURVIVNG SPOUSE INTESTATE SHARE
No descendants: Surviving spouse will inherit the entire estate in intestacy
Marital descendants: Surviving spouse will inherit the entire estate in intestacy
Non-marital descendants: surviving spouse takes half, non marital descendants take half per stirpes. applies even if there are marital descendants
If surviving spouse has non marital children: surviving spouse gets half, marital children get half
If surviving spouse has non marital children, no children in marriage with decedent: surviving spouse takes it all
INTESTATE SHARE OF HEIRS - LIST OF HEIRS
Descendants, per stirpes Parents Siblings and their descendants Grandparents and their descendants (half to maternal, other half to paternal) Kindred of last deceased spouse Escheat to state
ADOPTED CHILDRED
Treated the same as the natural children
NON-MARITAL CHILDREN
Children born out of wedlock are heirs of the mother, not the father
EXCEPT
A natural parent participated in a marriage ceremony (before or after birth), even if that marriage turned out to be void; or
The father acknowledges paternity in writing; or
Paternity is established by court adjudication
HALF-SIBLINGS
If half-sibling dies, and they have a full sibling, the full sibling will take 2/3, and half sibling takes 1/3
If all siblings are half-siblings then they will take whole shares
WILL DEFINITION
A will is an instrument executed with certain formalities, which is “testamentary in character.”
It is revocable during life and operative upon death
WILL REQUIREMENTS
Signed at the end by testator and two witnesses
Two witnesses must sign in the testator’s physical presence and in the physical presence of each other
The testator can sign in front of witnesses, or alone without witnesses present, if she acknowledges her signature later to the witnesses
If the testator is unable to sign, someone else can sign her name for her. This must be done at the testator’s direction and in her presence
Ordinarily, wills do not require the presence or signature of a notary. However a notary signature is required in some specific circumstances such as a self-proving will or an electronic will
INTERESTED WITNESSES
a beneficiary can act as a witness to a will
A beneficiary is an interested witness
HOLOGRAPHIC AND ORAL WILLS
Florida does not recognise these under any circumstances
EXCEPTION
If the will is handwritten and signed by two witnesses (follows the requirements), then it is acceptable
INCORPORATION BY REFERENCE
An extrinsic document can be incorporated by reference into a will if:
It exists at the time of execution;
It is sufficiently described in the will; and
The will manifests intent to incorporate the document
EXCEPTION
The one scenario where the document does not exist is if the testator creates/modifies list of tangible personal property to give to beneficiaries
SELF-PROVING AFFIDAVIT
A self-proving affidavit removes the need to bring witnesses to court to authenticate the signatures at probate
The testator and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary public
The affidavit can be executed at any time subsequent to the will’s execution, but standard practice is to execute both the will and the self-proving affidavit in one ceremony
if the will is lost or destroyed, we might still need witnesses to testify as to the contents of the will
The witness signatures on the self-proving affidavit can serve as the signatures to the will itself
The notary’s signature can also serve as one of the witness signatures, if the notary was otherwise qualified to serve as a witness
CODICILS
Amendment to previously executed will
Must follow the same formalities as a will
Under the doctrine of republication, a will is deemed effective as of the date of the last codicil
This date is important for determining if a spouse/child is pretermitted
REVOCATION BY WRITTEN INSTRUMENT
The testator may revoke all or part of a will by codicil or new will
If by codicil, it must be executed with the same formalities as a will
If the will/codicil does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistencies
REVOCATION BY PHYSICAL ACT
A will or codicil may be revoked by burning, tearing, canceling, defacing, or otherwise destroying it with the intent to revoke
The intent must be simultaneous with the act
The physical act may be performed by another, if done at the testator’s direction and in his presence
If the physical act is defacing of the language, the defacing act must cross out actual words, not just blank areas
No partial revocation by physical act. If it is attempted, it has no effect.
REVOCATION BY MARRIAGE
If the spouse is pretermitted, it revokes the will that hands over their inheritance to someone else
The estate will be treated as if the decedent died intestate
PROTECTION OF PRETERMITTED CHILDREN
The omitted child is entitled to an intestate share of the estate (per stirpes)
Gifts to other persons are abated to make this gift.
However, the pretermitted child does not inherit under the will if:
- The decedent had one or more children when the will was executed, and
- Substantially all of the decedent’s estate was given to the other parent of the pretermitted child
REVOCATION BY DIVORCE
Divorce revokes portions of the will pertaining to the ex-spouse. Other portions will remain intact
REVOCATION OF A DUPLICATE
An act of revocation performed on either duplicate is a revocation of both duplicates
Revocation on an unexecuted copy is not revocation
Court may impose a constructive trust if the testator believed that the action was a revocation
REINSTATEMENT OF A REVOKED WILL
May be republished and made valid again by
- Re-execution
- Execution of a codicil republishing it
IMPROPER REINSTATEMENT OF A REVOKED WILL
Revoking the new will does not reinstate the older one
LOST/DESTROYED WILLS
If the will cannot be found at the time of death, it is presumed that it is revoked by destruction
This presumption can be overcome if the contents of the will are proved by
Testimony of two disinterested witnesses, OR
One disinterested witness and a correct copy
LAPSED GIFTS
If a beneficiary dies before the testator, the gift has lapsed. A lapsed gift passes to the residue of the estate
ANTI-LAPSE
Devise does not lapse if
- will states what happens if the beneficiary predeceases
- The beneficiary is a grandparent or descendant of a grandparent
Specific language in the will will override the anti-lapse statute
ADEMPTION
When the item is no longer in the testator’s estate at the time of death, the gift is adeemed. That means it’s gone and the beneficiary is probably out of luck
Gifts of money cannot be adeemed
if the item was sold, destroyed, or condemned, the beneficiary may be entitled to the proceeds of the sale or insurance
ELECTIVE SHARE
If the testator writes the spouse out of the will or what is left to the spouse is too small, the surviving spouse can choose to take an elective share equal to 30% of her spouse’s “elective estate.”
The elective estate is comprised of the decedent’s probate estate and some non-probate assets, like life insurance and accounts with other people named as beneficiaries
FAMILY ALLOWANCE AND EXEMPT PROPERTY
The surviving spouse and lineal heirs are entitled to an allowance of $18,000 during probate administration, to cover living expenses
The surviving spouse or surviving minor children are entitled to up to $20,000 of household furnishings, two of the decedent’s personal motor vehicles, and all qualified tuition programs
These are in addition to amounts otherwise going to the spouse and children
MARITAL AGREEMENTS
Everything relating to inheritance can be waived by a spouse in a valid prenuptial or postnuptial agreement
PERSONAL REPRESENTATIVE
The personal representative is responsible for advancing the decedent’s estate through the probate process
Who does it? Testate N: The person named in the will, or S: Person selected by a majority in interest of persons entitled to the estate, or A: Any devisee
Intestate
S: Surviving spouse, or
S: Person selected by a majority in interest, or
N: Nearest heir
PERSONAL REPRESENTATIVE QUALIFICATION (ALL MEN FIND FARTS FUNNY)
Adult over 18
Mental capacity
Not a Felon
Florida resident OR Family member
Who is a family member?
Anyone related by “lineal consanguinity” to the decedent
A spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent or someone related by lineal consanguinity to any such person
ORDER OF PAYMENT TO CREDITORS (ANGRY FATHERS GET IRRITATED FROM CHILDISH BRATS)
Administrative Expenses Funeral Expenses up to 6k Government debts (taxes, et al) Expenses of last Illness Family allowance Child Support Business Debts All other claims
SIMPLIFIED PROBATE
Florida law provides for simplified administration of estates in two situations:
Summary administration: Available if:
The probate estate has value of less than $75,000, OR
The decedent has been dead for more than 2 years
Ancillary administration: Available only when a non-resident dies leaving assets in Florida
FINALITY OF PROBATE
Probate ends when the personal representative is discharged.
If any person has an objection to the probate proceedings (testate or intestate), he/she needs to come forth before the personal representative is discharged.
Once the PR is discharged, probate is final – even if significant new evidence is discovered, like fraud or a conflicting will/codicil.
However, we may reopen probate if new assets are discovered
PRESUMPTION OF DEATH
If the personal representative can prove that the person must be dead, either by direct or circumstantial evidence, a court can make a ruling of death and probate can proceed. The standard is a preponderance of the evidence
If the personal representative does not have any evidence to offer on the matter, The Florida Probate Code provides that a person is presumed to be dead if he is absent from his last known domicile for 5 years
