Wills Flashcards
Is property that is part of the exempt property set aside subject to creditors claims ?
No, this property is taken out first. Family allowance is a class 5 claim, so it comes ahead of general claims of decedent but behind funeral administration and federal tax and other debts.
When is the right to disclaim a interest under a will not allowed?
- When beneficiary accepts property or any of its benefits
- Beneficiary voluntarily assigns, transfers or encumbers the interest
- Property is sold pursuant to judicial process
- Beneficiary is insolvent
Disclaimer CAN be used to defeat creditors, but NOT a federal tax lient
What is necessary for a disclaimer to be valid?
- in writing identified as a disclaimer
- describes interest being disclaimed
- signed, witnessed and acknowledged
- delivered (and recorded if it is real property)
What is ancillary administration
If a nonresident dies leaving assets inf Florida
-governed by law of domicile unless will says otherwise
Can you petition to administer the estate of a missing person?
Yes, but P.R. will only be appointed after court determines that missing person is dead
When is a gift given during a person’s lifetime treated as the satisfaction of a gift in the will
Only if:-will provides for deduction of lifetime gift
- T declares in a contemporaneous writing that gift is to be deducted from devise OR
- devisee acknowledges gift in writing.
When is formal administration unnecessary
-if estate consists of only personal property, the value of which does not exceed the sum of exempt property and death expenses, and the court gives permission after informal administration
Availability of summary administration
-for estates less than $75,000 (less value of property exempt from creditors claims) or T has been dead for more than 2 years
Can interested persons alters the interests to which they are entitled?
Yes, in a written contract between them. P.R. shall abide by the terms of the contract, subject to his obligation to administer for the benefit of the interested persons, and to his obligation to pay costs of administration
What happens if distributee or claimant was paid improperly
They must return the assets or funds received, along with income from those assets since the distribution or payment. If he no longer has the property, he must return the value.
What is an advancement?
Property that T gives during lifetime that counts against will bequests
Only counts against will bequest if T signs a writing contemporaneous with advancement, or if acknowledged in writing by heir.
When is the earliest the P.R. can deliver devises or distributive shares?
Expiration of 5 months from granting of letters
SOL on claims against estate
Two years
N/a to liens or mortgages
Can a claim be compromised?
Yes, bu court order, if court is satisfied that the compromise will be for the best interest of the interested persons. the order shall relieve the P.R. of all liability or responsibility for the compromise.
Claims cannot be compromised until time for filing objections to claims has expired.
Order of Abatement of Legacies when there aren’t enough assets
- Intestacy
- Residuary Devises and Bequests
- General legacies
- Specific and demonstrative gifts
Are liens on Specifically Devised Property paid out of estate assets
No, unless will specifically directs that to happen (Florida is minority here). A general instruction in will to “pay debts” is not enough.
When does a caveat need to be filed?
Noncreditor - before or after death
creditor - after death
If filed before death, it expires two years after filing.
Caveator then gets notice of administration
What is a caveat?
-statement of a person’s interest in the estate
What happens if P.R. files a timely objection to the creditor’s claim?
Claimant must file an action on the claim within 20 days of objection
P.R. has 4 months after publication or 30 days after claim is filed to object
When does creditor have to file his claim?
If served with notice, must file within 1. three months of the date of first publication or 2. 30 days after service of notice, whichever is later
N/a to claims arising after death
Is P.R. liable for failing to publish or serve notice?
No. Any liability is on the estate
What notice does P.R. have to give creditors?
§ Once a week for 2 consecutive weeks in newspaper in county where estate is administered - “promptly”
§ Personally serve creditors w/ copy of notice w/in 3 months of first publication of notice
§ Serve anyone who may be beneficiary in will
Order of payment of creditors claims
(1) Administration expenses
(2) Funeral expenses (not to exceed $6k)
(3) Federal tax claims and debts, Medicaid, state court costs, fees or fines
(4) Expenses of last illness (up to 60 days)
(5) Family allowance
(6) Arrearage from court-ordered child support
(7) Post-death business expenses
(8) All other claims
How is P.R. discharged
After administration is completed, P.R> shall be released and shall bar any action against him
Suspension of SOL in favor of P.R.
If T was entitled to bring an action and dies, his P.R. gets remainder of SOL or 12 months, whichever is longer
Is attorney for P.R. entitled to compensation?
Reasonable compensation permitted w/o court order
-amounts set forth in statute
Are joint P.R.’s entitled to a full commission each?
If estate is valued at $100,000 or more, each is entitled to full commission. If there are more than 2, compensation that two would receive is divided between the,/
If estate is less than $100,000, they must apportion one full commission among them
IS a will provision fixing P.R. compensation binding?
Not bonding unless the provision was made pursuant to contract
Is P.R. entitled to compensation?
-Entitled to reasonable compensation - a percentage of the value of the probate estate, payable out of estate assets.
When can a personal be representative removed?
B/c of:
- incapacity
- failure to account
- -failure to comply with a court order
- waste and maladministration
- conviction of a felony
- insolvency
- conflict of interest
- disqualification, i.e. will appointing him is revoked.
Is exculpation of P.R. allowed in an exculpatory clause?
Exculpatory clauses are VOID if they:
- relieve the P.R. of liability for breach of duty committed in bad faith or w/reckless indifference or
- appear to be a result of an abuse of a confidential relationship with the T
Liability of P.R.
Not individually liable unless she fails to reveal her capacity or contract provides otherwise. Liable for torts only if personally at fault, or for acting in bad faith.
Can rely on professional advice without incurring liability
How does a dissenting joint P.R. avoid personal liability?
Put dissent in writing.
Powers of joint personal representatives
Majority must concur as to any act, unless will provides otherwise or it is an emergency
Can P.R. taking possession of protected homestead property?
Only if it is not occupied by an heir or devisee. If P.R. expends funds in doing so, he is entitled to a lien on the property and its revenue to secure payment.
Powers of personal representative exercisable without a court order
-can do whatever a fee simple owner could do, except: operate T’s unincorporated business for more than 4 months; selling, mortgaging or leasing r.p. (unless will says so); and transactions involving a conflict of interest
Duties of Personal Representative
- secure assets and preserve estate - can surrender real or personal property to person presumptively entitled to it.
- duty to keep assets separate
- duty to file inventory, including safe deposit box inventory
- use standard of care identical to trustee
If persona representative finds out he is no longer qualified, what should he do?
promptly file and serve a notice setting forth reasons for inability to serve. Otherwise, you can face personal liability for costs of removal proceeding.
When can a nonresident qualify to act as a personal representative
- grandparent or descendant of grandparent of decedent
- adopted child or adopted parent of decedent
- descendants spouse or person related by lineal cosanguinity to spouse;
- spouse of any of the foregoing persons
Qualifications to act as personal representative
- 18 y/o
- mental capacity
- never convicted of a felony
- resident of Florida
Who is entitled to serve as a personal representative where there is NO WILL
- Surviving spouse
- Person selected by a majority in interests of the heirs
- heir nearest in degree of kinship
What is the only exception to the rule that the Court MUST appoint the person named in will
Unforeseen circumstances arise that would have affected T’s decision had she been aware of them
Who is entitled to serve as a personal representative where there is a WILL
If T left a will, order of preference is:
- person named in will;
- person selected by a majority in interests of the persons entitled to the estate; and
- A devisee under the will
Can you probate a will written in a foreign language?
Yes, same procedure except you need to provide an English translation
Post nuptial agreement - do you need disclosure to validly waive right of election and other rights?
Yes - fair disclosure required.
Prenuptial agreement - do you need disclosure to validly waive right of election and other rights?
NO! This is different than family law
How can a will be proved?
By oath of one of the W’s, or if none can be found, the personal representative or another disinterested person can testify that he believes the offered writing to be T’s will.
-self-proving if you have a self-proving affidavit
Are arbitration provisions in a will binding?
Yes, for disputes OTHER than the validity of all or part of a will.
When are you presumed to be dead?
- absent from place of last known domicile for 5 continuous years AND
- absence is not satisfactorily explained after diligent search and inquiry.
Venue for probate proceedings
T’s county of residence at the time of death, or for nonresidents, anywhere T owned property, and if none, where any debtor of T resides.
What courts have exclusive jurisdiction over probate proceedings
Circuit courts
Whats is the Slayer Statute
Says that a person who wrongfully participates in the killing of another may not receive any benefits as a result of the death. JT and Tby E treated as TIC.
Must be proven by “greater weight of the evidence”
HEIRS still inherit
What is a specific devisee of stock entitled to?
Any additional shares of the same stock owned by T if there is additional stock because of merger or consolidation, or they were purchased under a dividend reinvestment plan
When does Ademption not apply to Specific bequests or devises
- When the property was disposed of by a guardian or —where property is no longer in the estate, but a balance is owed to T or
- where T devises his interest in property as opposed to the property itself
Are general or demonstrative legacies ever adeemed?
No, they will be satisfied by selling other assets or making a distribution in kind.
Courts try to construe a gift of securities as a general legacy unless T said “MY 200 shares of Acme stock”
What is a demonstrative legacy?
Gives a dollar amount, but specifies a particular asset as a source of payment
