Wills

Question 1

When is ancillary administration required?

Answer 1

When a nonresident dies leaving Florida assets

Question 2

When can you use summary administration?

Answer 2

Only when the value of the entire estate subject to administration, less the value of the property exempt from claims of creditors is $75,000 or less

Question 3

Can a personal representative hire consultants and rely on their advice without independent investigation?

Answer 3

Yes

Don’t even need a court order

Question 4

If personal representative validly relies on the opinion of a consultant, is the personal representative personally liable if that advice is erroneous?

Answer 4

No, as long as the personal representative acted prudently in employing and taking the advice of the professional

Question 5

When is the right to disclaim an interest barred?

Answer 5

Before the disclaimer:

1) Beneficiary accepts property or any benefits
2) Beneficiary voluntarily assigns/transfers the interest
3) property sold via judicial process
4) Beneficiary is insolvent

Question 6

What is required for a disclaimer to be valid?

Answer 6

1) Must be in a writing identified as a disclaimer
2) describe the interest or power being disclaimed
3) signed, witnessed, and acknowledged
4) be delivered

Question 7

What is the time limit on when a disclaimer must be made?

Answer 7

There is no time limit

Question 8

What is the effect of revoking a codicil?

Answer 8

The codicil is revoked, but not the will or previous codicils

Question 9

How will spouse take homestead property ?

Answer 9

Life estate with remainder to descendants (or can elect to be TIC w/ the descendants)

Question 10

What is the elective share percentage in Florida?

Answer 10

30%

Question 11

What happens if will said to give person money from X stock but sold the stock later?

Answer 11

This is a demonstrative gift and the person would be entitled to get that amount from the person’s estate

Question 12

When would right of survivorship not apply to TBE?

Answer 12

When the spouses are legally divorced

(Not just when they filed the petition for dissolution of marriage. If in between this period, spouse still gets under rights of survivorship)

Question 13

If forgot to include something in the will can you bring in extrinsic evidence?

Answer 13

Yes, to show that a provision was mistakenly omitted or that a provision in the will is not what the testator intended

Question 14

If a gift lapses (say, because the person predeceased), what happens to that person’s share of the gift?

Answer 14

It goes to the residuary of the testator’s estate

Question 15

What to always keep in mind even if someone predeceases?

Answer 15

Anti-lapse

Question 16

What are the elements of another person being able to revoke the testator’s will?

Answer 16

1) At testator’s direction; and

2) In testator’s presence

Question 17

Who does property go to if no lineal descendants and no spouse?

Answer 17

Brothers & sisters per stirpes (and their heirs)

Question 18

Where must probate proceedings be initiated?

Answer 18

Only in the county in which the decedent was a resident at the time of his death

Question 19

What is the time frame of an interested person to challenge a will’s validity, venue, or court’s jurisdiction?

Answer 19

Within 3 months after the date of service of the notice of administration

Question 20

If gift given in the will to later married spouse, when can that spouse not claim pretermitted status?

Answer 20

When the gift was in contemplation of marriage

Question 21

What is the acts of independence significance doctrine?

Answer 21

A will may dispose of property by reference to acts that have some lifetime significance other than providing a testamentary gift

(ex: to my employees)

Question 22

If a will refers to another document, does it need to be in existence at the time the will is executed?

Answer 22

No, just signed by the testator and describe the items and devisees with reasonable certainty

Question 23

If a spouse takes an elective share, can they take from the will too?

Answer 23

No, spouse takes elective share in lieu of taking under the will

Question 24

What else can spouse get it take from elective share?

Answer 24

Spouse has a right to exempt property, a family allowance, and homestead

Question 25

In which do you need financial disclosure, postnup or prenup?

Answer 25

Postnup

Question 26

What happens if don’t disclose everything in a prenup?

Answer 26

Nothing, prenup still governs. Not obligated to make disclosures for the prenup

(So, can limit the elective share estate)

Question 27

What happens if demonstrative legacy/gift is no longer in the estate?

Answer 27

Gift is treated like a general one for abatement

Question 28

What happens if not enough money to fulfill all the general gifts in the will?

Answer 28

Decrease pro rata

Note: ademption doesnt apply to demonstrative legacies

Question 29

What disqualifies a person from being a personal representattive?

Answer 29

Not 18, have a mental disorder, convicted of a felony, not a resident of FL

Question 30

Who are the only non-FL residents who can be a personal representative?

Answer 30

1) Grandparent or grandparent’s descendant
2) adoptive parent or child
3) decedent’s spouse of person related by lineal consangunity to the decedent’s spouse
4) spouse of any of the foregoing persons

Question 31

What is the order of creditors to take from a person’s estate?

Answer 31

1) administration of the estate
2) funeral costs (less than $6k)
3) debts and taxes
4) medical expenses of the last 60 days
5) family allowance
6) child support
7) debts after death by continuation of business
8) all other claims

Question 32

What is needed for insane delusion?

Answer 32

Insane delusion, which is more than a mere belief in facts no matter how illogical

Question 33

What is needed for a gift to be treated as an advancement?

Answer 33

Intention to have it treated like an advancement and declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir

Question 34

At what point is the value of an advancement determined?

Answer 34

At the time it was given to the donee.

Question 35

What is the time frame in which a spouse must file his/her election?

Answer 35

On or before the earlier of

1) 6 months after service of a copy of the notice of admin; or
2) 2 years after decedent’s death

Question 36

What is the effect of an advancement on a predeceased heir’s successors?

Answer 36

The advancement is not binding and they take regular per stirpes , unless writing or acknowledgement says otherwise

Question 37

If a will that was last seen in the possession or control of the decedent, what presumption arises?

Answer 37

That the will was revoked

Presumption can be overcome by proof that the testator did not intend to revoke the will

Question 38

Who does a lawyer owe a duty to?

Answer 38

The client and the beneficiaries in the will

Question 39

What is the effect of a will not granting a personal representative a power of sale?

Answer 39

The representative must obtain a court order to sell real property

Question 40

What is required to establish undue influence?

Answer 40

1) influence was exerted against decedent;
2) the effect of the influence was to overpower decedent’s mind and free agency; and
3) the product was a will that would not have been executed but for the undue influence

Question 41

Who may receive family allowance (not to exceed $18,000)?

Answer 41

Surviving spouse and lineal heirs whom the decedent was obligated to support or who were in fact being supported by him

Question 42

Are the shareholders of a corporation personally liable for the acts of a corporation if the corporation acted outside the scope of its powers?

Answer 42

No

Question 43

If a will says one amount but the amount says otherwise, what governs?

Answer 43

Can bring in extrinsic evidence to show testator’s intent

Question 44

What if advance a gift but what’s left over isnt enough?

Answer 44

Don’t need to contribute

Question 45

What happens if surviving spouse doesn’t make an election before she dies?

Answer 45

Personal representative can’t make election either