Wills

Question 1

INTESTATE SUCCESSION

Answer 1

When there is no will or trust

Question 2

WHAT IS PER STIRPES

Answer 2

Even split at the first generational level

At the second generational level, that split is split evenly again, or not.

Question 3

SURVIVNG SPOUSE INTESTATE SHARE

Answer 3

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

Question 4

INTESTATE SHARE OF HEIRS - LIST OF HEIRS

Answer 4

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

Question 5

ADOPTED CHILDRED

Answer 5

Treated the same as the natural children

Question 6

NON-MARITAL CHILDREN

Answer 6

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

Question 7

HALF-SIBLINGS

Answer 7

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

Question 8

WILL DEFINITION

Answer 8

A will is an instrument executed with certain formalities, which is “testamentary in character.”

It is revocable during life and operative upon death

Question 9

WILL REQUIREMENTS

Answer 9

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

Question 10

INTERESTED WITNESSES

Answer 10

a beneficiary can act as a witness to a will

A beneficiary is an interested witness

Question 11

HOLOGRAPHIC AND ORAL WILLS

Answer 11

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

Question 12

INCORPORATION BY REFERENCE

Answer 12

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

Question 13

SELF-PROVING AFFIDAVIT

Answer 13

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

Question 14

CODICILS

Answer 14

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

Question 15

REVOCATION BY WRITTEN INSTRUMENT

Answer 15

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

Question 16

REVOCATION BY PHYSICAL ACT

Answer 16

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.

Question 17

REVOCATION BY MARRIAGE

Answer 17

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

Question 18

PROTECTION OF PRETERMITTED CHILDREN

Answer 18

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

Question 19

REVOCATION BY DIVORCE

Answer 19

Divorce revokes portions of the will pertaining to the ex-spouse. Other portions will remain intact

Question 20

REVOCATION OF A DUPLICATE

Answer 20

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

Question 21

REINSTATEMENT OF A REVOKED WILL

Answer 21

May be republished and made valid again by

• Re-execution
• Execution of a codicil republishing it

Question 22

IMPROPER REINSTATEMENT OF A REVOKED WILL

Answer 22

Revoking the new will does not reinstate the older one

Question 23

LOST/DESTROYED WILLS

Answer 23

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

Question 24

LAPSED GIFTS

Answer 24

If a beneficiary dies before the testator, the gift has lapsed. A lapsed gift passes to the residue of the estate

Question 25

ANTI-LAPSE

Answer 25

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

Question 26

ADEMPTION

Answer 26

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

Question 27

ELECTIVE SHARE

Answer 27

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

Question 28

FAMILY ALLOWANCE AND EXEMPT PROPERTY

Answer 28

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

Question 29

MARITAL AGREEMENTS

Answer 29

Everything relating to inheritance can be waived by a spouse in a valid prenuptial or postnuptial agreement

Question 30

PERSONAL REPRESENTATIVE

Answer 30

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

Question 31

PERSONAL REPRESENTATIVE QUALIFICATION (ALL MEN FIND FARTS FUNNY)

Answer 31

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

Question 32

ORDER OF PAYMENT TO CREDITORS (ANGRY FATHERS GET IRRITATED FROM CHILDISH BRATS)

Answer 32

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

Question 33

SIMPLIFIED PROBATE

Answer 33

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

Question 34

FINALITY OF PROBATE

Answer 34

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

Question 35

PRESUMPTION OF DEATH

Answer 35

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