Wills Flashcards
When is ancillary administration required?
When a nonresident dies leaving Florida assets
When can you use summary administration?
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
Can a personal representative hire consultants and rely on their advice without independent investigation?
Yes
Don’t even need a court order
If personal representative validly relies on the opinion of a consultant, is the personal representative personally liable if that advice is erroneous?
No, as long as the personal representative acted prudently in employing and taking the advice of the professional
When is the right to disclaim an interest barred?
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
What is required for a disclaimer to be valid?
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
What is the time limit on when a disclaimer must be made?
There is no time limit
What is the effect of revoking a codicil?
The codicil is revoked, but not the will or previous codicils
How will spouse take homestead property ?
Life estate with remainder to descendants (or can elect to be TIC w/ the descendants)
What is the elective share percentage in Florida?
30%
What happens if will said to give person money from X stock but sold the stock later?
This is a demonstrative gift and the person would be entitled to get that amount from the person’s estate
When would right of survivorship not apply to TBE?
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)
If forgot to include something in the will can you bring in extrinsic evidence?
Yes, to show that a provision was mistakenly omitted or that a provision in the will is not what the testator intended
If a gift lapses (say, because the person predeceased), what happens to that person’s share of the gift?
It goes to the residuary of the testator’s estate
What to always keep in mind even if someone predeceases?
Anti-lapse
What are the elements of another person being able to revoke the testator’s will?
1) At testator’s direction; and
2) In testator’s presence
Who does property go to if no lineal descendants and no spouse?
Brothers & sisters per stirpes (and their heirs)
Where must probate proceedings be initiated?
Only in the county in which the decedent was a resident at the time of his death
What is the time frame of an interested person to challenge a will’s validity, venue, or court’s jurisdiction?
Within 3 months after the date of service of the notice of administration
If gift given in the will to later married spouse, when can that spouse not claim pretermitted status?
When the gift was in contemplation of marriage
What is the acts of independence significance doctrine?
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)
If a will refers to another document, does it need to be in existence at the time the will is executed?
No, just signed by the testator and describe the items and devisees with reasonable certainty
If a spouse takes an elective share, can they take from the will too?
No, spouse takes elective share in lieu of taking under the will
What else can spouse get it take from elective share?
Spouse has a right to exempt property, a family allowance, and homestead
In which do you need financial disclosure, postnup or prenup?
Postnup
What happens if don’t disclose everything in a prenup?
Nothing, prenup still governs. Not obligated to make disclosures for the prenup
(So, can limit the elective share estate)
What happens if demonstrative legacy/gift is no longer in the estate?
Gift is treated like a general one for abatement
What happens if not enough money to fulfill all the general gifts in the will?
Decrease pro rata
Note: ademption doesnt apply to demonstrative legacies
What disqualifies a person from being a personal representattive?
Not 18, have a mental disorder, convicted of a felony, not a resident of FL
Who are the only non-FL residents who can be a personal representative?
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
What is the order of creditors to take from a person’s estate?
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
What is needed for insane delusion?
Insane delusion, which is more than a mere belief in facts no matter how illogical
What is needed for a gift to be treated as an advancement?
Intention to have it treated like an advancement and declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir
At what point is the value of an advancement determined?
At the time it was given to the donee.
What is the time frame in which a spouse must file his/her election?
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
What is the effect of an advancement on a predeceased heir’s successors?
The advancement is not binding and they take regular per stirpes , unless writing or acknowledgement says otherwise
If a will that was last seen in the possession or control of the decedent, what presumption arises?
That the will was revoked
Presumption can be overcome by proof that the testator did not intend to revoke the will
Who does a lawyer owe a duty to?
The client and the beneficiaries in the will
What is the effect of a will not granting a personal representative a power of sale?
The representative must obtain a court order to sell real property
What is required to establish undue influence?
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
Who may receive family allowance (not to exceed $18,000)?
Surviving spouse and lineal heirs whom the decedent was obligated to support or who were in fact being supported by him
Are the shareholders of a corporation personally liable for the acts of a corporation if the corporation acted outside the scope of its powers?
No
If a will says one amount but the amount says otherwise, what governs?
Can bring in extrinsic evidence to show testator’s intent
What if advance a gift but what’s left over isnt enough?
Don’t need to contribute
What happens if surviving spouse doesn’t make an election before she dies?
Personal representative can’t make election either
