Wills Flashcards
Per Stirpes Order
First: Descendants
Second: Parents.
Third: Siblings and their Desc.
Fourth: Grandparents and their Desc (cousins, aunts, uncles, etc).
Out-of-Wedlock Father
(i). Marriage ceremony before/after birth; (ii) Adjudicated as parent before or after father’s death; (iii) father acknowledges paternity in writing.
Half-Blood
Full Blood - 2 Shares b/c 2 parents
Half - 1 Share b/c 1 parent
Florida Simultaneous Death
No timing requirement for heir to survive. Briefest period is fine to establish death order.
Advancements
Declared in Contemp. Writing or acknowledged in writing by heir.
Hotchpot
Advancement is added to entirety of estate when dividing it up.
No _____ Will
Holo or Oral
Signing the Will by Testator
(i) At the end; (ii) No full name nec; (iii) order of sig doesn’t matter; (iv) conscious presence. Order of sigs doesn’t matter
Witnesses Knowledge of Will:
Doesn’t have to read or even be aware item is a will.
Witness Signature Info
(i) Witnesses don’t need to see testator sign will; (ii) Placement of sigs irrelevant; (iii) Wits have to sign in each other’s presence.
Witness Interest/Age
Doesn’t matter for either. - Except Unrelated attorney can’t take a devise from it.
Electronic Wills
Zoom is fine. - Requires (i) one party online be a notary; (ii) parties authenticated; (iii) Witness hears signer make ack that the signer has signed the record; (iv) Supervision rules adhered to
Codicils from other states
Fine
Self-Proving Affs
Fine as witness sig if aff signed at same time as will
Pour Over (will to trust)
Only good if trust was executed prior to or concurrently with will.
Totten Trusts
Not estate asset. Because revocable and depositor can withdraw at any time
Life Insurance Policies ______
Govern.
Divorce Kills
Will, LI policies, death securities, etc.
Revocation
Present Intent; Sub Item done with same formalities as will (codicils); instrument identifies will
How to Revoke
Any matter of destruction. Partial Destruction or Lost Will counts as revocation. Third party can revoke if in presence (no phone jazz).
Preter Spouse
Gets intestate share UNLESS: (i) provision was made for spouse or waived by spouse; (ii) testator made gift in will regarding spouse; (iii). testator makes disclosure not to make provision for spouse.
Preter Child
Gets intestate share UNLESS (i) will discloses intentional omission; (ii) all property was previously given to parent of preter child; (iii) child got property that would equal child’s share.
Codicil Revo
Does not revoke will.
Re-execution of will after toast
Can be necro’d if done the same way as a will. (two witnesses, etc). New codicil can also revive previous will when expressly refers to first
Lost/Destroyed Will Presumption Overcome
(i) two disinterested witnesses if just dealing with contents; or (ii) one disinterested party if copy is found somewhere.
Devise Types:
(i). Specific - Direct Item (car); (ii) General - personal property from general assets (100k); (iii) Demonstrative - Money from Direct Account, then after general account; (iv) Residuary - Rest/Residue.
Property Lists of Small Items
Fine - Most Recent List is used.
Lapse/Anti-Lapse
Goes back to original pool if lapse unless contrary statement is provided in the will.
Class Gift
Only remaining class members get it.
Florida Anti-Ademption
Party gets whatever is left from it, proceeds, insurance payouts, etc.
Lien Exoneration
Not automatically exonerated unless specifically stated in will.
Elective Share
30% by surviving spouse. Deadline is 6 months after notice of administration or within 2 years of the debt.
Proof Standard for Slayer Statute
Greater weight in absence of conviction
Challenging Marriage Fraud
Preponderance of Evidence - 4 Year SOL
Disclaiming Property
In writing unless: (i) Bene accepts; (ii) bene assigns/conveys; (iii) interest sold at judicial sale; (iv) bene is insolvent when disc becomes irrevocable.
Will Contest BoP
BoP on proponent of will first, then shifts.
Testamentary Capacity
18+ and sane.
Undue Influence BoP
On the person attempting to prove Undue Influence at time of execution/revocation
Will Mistake - What Happens?
Only that part of the will is revoked.
Other Will Mistakes - What Happens?
Interested parties can apply to reform. Court can do so also.
No-Contest Clauses are ______
Invalid in Florida
Missing People Timing
Continuous absence of five years.
Will Probate Timing
Within 10 days after receiving info person is dead.
Caveat - New
Person HAS TO BE DEAD for Creditor
Interested parties who are not creditors can file early. Lasts for 2 years
PR Notice to Parties
(i) Surviving Spouse; (ii) benes; (iii) trust bene/trustees; (iv) any entitled parties for exempt property
PR Qualifications
(i) 18+; sane; no felonies; Florida Resident
PR Quals Non-Florida Resident
(i) adoptive child or parent; (ii) lineally related; (iii) any cosanguine relative; (iv) spouse of any of the previously stated parties.
PR Preference Order - Testate
(i) Designated in will; (ii) majority selection by persons entitled to administer; (iii) Devisee under will
PR Preference Order - Intestate
(i) Surviving Spouse; (ii) majority selection; (iii) heir nearest in degree.
Creditor Claim Order
(i) Attorneys/Admin costs first; (ii) Funeral shit; (iii) Debts/Taxes - Feds get first; (iv) Medical/Hospital expenses; (v) family; (vi) child support; (vii) after death debts. [When money runs out, successive groups get pro rata]
Notice to Creditors
Once a week for two weeks.
Personal Service to Creditors
Serve copy to creditors within three months after first publication - Unless (i) claim was paid; (ii) creditor already filed; (ii) creditor already listed.
Creditors for Mortgages/Liens
Don’t need notice
Summary Admin
75k or less or party has been dead for at least 2 years.
Intestate Order
Down, Up (Parents), Right (Siblings), Up (Grand P), A (Aunts/Uncles)
Waiver of Rights - Remaining Spouse
Two witnesses. Out of State agreements valid if legal in that state.
Probate Location
County of residence
PR pay off time.
Within one year, court can extend. Can’t be forced to pay earlier than 5 months after initial notice to creditors.
Debtor death before debtee
Debtee and their estate doesn’t have to pay. Unsure, but general rule for this.
Devising only personal property
Does not require formal proceedings or administration.
Elective Estate Includes
Probate Estate + additional assets outside probate estate.
Adopted cannot inherit through
Bio parents - except when adopted by spouse of bio parent, adoption by close relative after death of bio.
PR can refuse
to perform on dead’s contracts when proper.
PR has to
File taxes, et cetera. Has same fiduciary duty as trustee. (Not paying taxes question, weird nonsense)
Notice to creditors requires
File name, dead’s name, date of first publication (Does not require date of death)
“Acts & Events”
significance apart from their effect on dispos made by will.
Self-proved wills
May be admitted to probate without further proof.
Encumbrance Payment
No residual to pay for it unless stated in will. Same as general rule.
Elective Shares Include
Share + Homestead (if applicable), exempt property, and allowances
Suit/Proposal to Compromise
Absolves PR of liability if agreed upon. Court order for this. Comps can’t be made until after time for filing objections to claims has expired.
Separate writing for business/trade.
Can’t do it (refers to addendum lists for trinkets)
Anti-Ademption
“right to general pecuniary devise.”
Election on Homestead can be made by
Spouse, Attorney in Fact, guardian of the property of surviving spouse.
Agreements to not do shit (revoke, make) must
Be in writing, signed by agreeing parties in presence of two witnesses.
Substitute gift not created for
Devisee that is descendant of the testator’s grand parent
PR liability when attorney fucks up notice.
Still liable because PR has to make sure notice is given…eh..
Surrendering devise by PR - Timing
Until after expiration of 5 months from granting of letters. - except when otherwise stated in will.
PR respo for storage and delivery
Has to reasonable storage expenses/delivery fees/insurance for items.
Demo devises turning into
General devises when payment insufficiencies from previous general.
Oral Trusts
Fine unless property
Charitable
No specific people, just cause/charity, perpetual.
Pour over trusts must be
In writing
Banks can be
Trustees. As long as enumerated.
Trustee can be
Beneficiary, but not sole.
Trustee resignation
30d notice or court approval
If trustee fucks up
Can ratify (forgive) or sue for “surcharge” full amount lost
Trustees don’t need to be
Replaced (as long as there is at least one)
Convey and Trustee - who owns property
Trustee does unless spec stated otherwise.
Modifying Irrevocable trust w/o court
Everyone’s approval + settlor must be dead.
Destroying/Revocation
Must be done in front of party’s presence. Can have someone else do this, but above rule still applies. No matter what.
