Wills Flashcards
1
Q
Is property that is part of the exempt property set aside subject to creditors claims ?
A
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.
2
Q
When is the right to disclaim a interest under a will not allowed?
A
- 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
3
Q
What is necessary for a disclaimer to be valid?
A
- in writing identified as a disclaimer
- describes interest being disclaimed
- signed, witnessed and acknowledged
- delivered (and recorded if it is real property)
4
Q
What is ancillary administration
A
If a nonresident dies leaving assets inf Florida
-governed by law of domicile unless will says otherwise
5
Q
Can you petition to administer the estate of a missing person?
A
Yes, but P.R. will only be appointed after court determines that missing person is dead
6
Q
When is a gift given during a person’s lifetime treated as the satisfaction of a gift in the will
A
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.
7
Q
When is formal administration unnecessary
A
-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
8
Q
Availability of summary administration
A
-for estates less than $75,000 (less value of property exempt from creditors claims) or T has been dead for more than 2 years
9
Q
Can interested persons alters the interests to which they are entitled?
A
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
10
Q
What happens if distributee or claimant was paid improperly
A
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.
11
Q
What is an advancement?
A
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.
12
Q
When is the earliest the P.R. can deliver devises or distributive shares?
A
Expiration of 5 months from granting of letters
13
Q
SOL on claims against estate
A
Two years
N/a to liens or mortgages
14
Q
Can a claim be compromised?
A
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.
15
Q
Order of Abatement of Legacies when there aren’t enough assets
A
- Intestacy
- Residuary Devises and Bequests
- General legacies
- Specific and demonstrative gifts
16
Q
Are liens on Specifically Devised Property paid out of estate assets
A
No, unless will specifically directs that to happen (Florida is minority here). A general instruction in will to “pay debts” is not enough.
17
Q
When does a caveat need to be filed?
A
Noncreditor - before or after death
creditor - after death
If filed before death, it expires two years after filing.
Caveator then gets notice of administration
18
Q
What is a caveat?
A
-statement of a person’s interest in the estate
19
Q
What happens if P.R. files a timely objection to the creditor’s claim?
A
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
20
Q
When does creditor have to file his claim?
A
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
21
Q
Is P.R. liable for failing to publish or serve notice?
A
No. Any liability is on the estate
22
Q
What notice does P.R. have to give creditors?
A
§ 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
23
Q
Order of payment of creditors claims
A
(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
24
Q
How is P.R. discharged
A
After administration is completed, P.R> shall be released and shall bar any action against him
25
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
26
Is attorney for P.R. entitled to compensation?
Reasonable compensation permitted w/o court order
| -amounts set forth in statute
27
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
28
IS a will provision fixing P.R. compensation binding?
Not bonding unless the provision was made pursuant to contract
29
Is P.R. entitled to compensation?
-Entitled to reasonable compensation - a percentage of the value of the probate estate, payable out of estate assets.
30
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.
31
Is exculpation of P.R. allowed in an exculpatory clause?
Exculpatory clauses are VOID if they:
1. relieve the P.R. of liability for breach of duty committed in bad faith or w/reckless indifference or
2. appear to be a result of an abuse of a confidential relationship with the T
32
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
33
How does a dissenting joint P.R. avoid personal liability?
Put dissent in writing.
34
Powers of joint personal representatives
Majority must concur as to any act, unless will provides otherwise or it is an emergency
35
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.
36
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
37
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
38
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.
39
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
40
Qualifications to act as personal representative
- 18 y/o
- mental capacity
- never convicted of a felony
- resident of Florida
41
Who is entitled to serve as a personal representative where there is NO WILL
1. Surviving spouse
2. Person selected by a majority in interests of the heirs
3. heir nearest in degree of kinship
42
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
43
Who is entitled to serve as a personal representative where there is a WILL
If T left a will, order of preference is:
1. person named in will;
2. person selected by a majority in interests of the persons entitled to the estate; and
3. A devisee under the will
44
Can you probate a will written in a foreign language?
Yes, same procedure except you need to provide an English translation
45
Post nuptial agreement - do you need disclosure to validly waive right of election and other rights?
Yes - fair disclosure required.
46
Prenuptial agreement - do you need disclosure to validly waive right of election and other rights?
NO! This is different than family law
47
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
48
Are arbitration provisions in a will binding?
Yes, for disputes OTHER than the validity of all or part of a will.
49
When are you presumed to be dead?
1. absent from place of last known domicile for 5 continuous years AND
2. absence is not satisfactorily explained after diligent search and inquiry.
50
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.
51
What courts have exclusive jurisdiction over probate proceedings
Circuit courts
52
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
53
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
54
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
55
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"
56
What is a demonstrative legacy?
Gives a dollar amount, but specifies a particular asset as a source of payment
57
What is a general legacy?
A gift of a specific dollar amount
58
What does a beneficiary get of bequest or devise is adeemed?
Nothing
However, court will inquire into T's intent, particularly in circumstances where the absence of the property did not result from her own actions.
59
Whats is ademption?
Failure of a gift because it is no longer in T's estate
| -applies only to specific devises and bequests
60
What is the Uniform Simultaneous Death Act
In Florida, USDA says that if you cannot determine which spouse died first, you treat each as if they had survived the other.
In case of JT w/ros - they each get half
-unless WILL says something else
61
Who takes in class gifts?
Only members of the class who SURVIVE the testator, take in a class girt.
62
If antilapse statute DOES NOT APPLY, and there is a lapse in a residuary gift, who gets the interest
The remaining residuary beneficiaries share in proportion to their interests.
63
What is the antilapse statute?
A predeceasing beneficiary's surviving descendants will take his share per stirpes if:
1. the beneficiary is a grandparent or descendant of grandparent of T AND
2. Benef is dead when will was executed, died before T or is required to be treated as if he predeceased
Applies unless WILL says something else
Applies to VOID gifts as well
64
SOL for challenging Surviving Spouse's rights
4 years
65
When is spouse disqualified from exercising spousal rights?
-When marriage is procured by fraud, duress, undue influence UNLESS T had knowledge and cohabited anyway
66
What are the only things paid BEFORE the family allowance?
- costs of administration
- funeral (up to $6,000)
- expenses of last illness
67
When do you need to petition for exempt property?
W/in 4 months of Notice of Administration or w/in 40 days of termination of litigation
68
What is NOT considered exempt personal property
Specifically bequeathed property or property on which there is a perfected security interest
69
What is the exempt personal property set-aside
A surviving spouse (or if none, T's children) is entitled to up to $20,000 of household furnishings, 2 cars (personal only), and all qualified tuition programs in addition to other things.
Exempt property is EXCLUDED from value of estate before residuary, interstate, pretermitted or elective shares are determined
70
How do you obtain family allowance?
It must be petitioned for; it is not automatic.
But spouse does not have to show need.
71
What is the family allowance?
- purpose is to provide support during probate administration
- It is IN ADDITION TO all other property
- up to $18,000 to surviving spouse and lineal heirs (both ascendants and descendants) who were receiving support from T
72
How is the elective share satisfied, in order of priority
- All interests that have passed to spouse are applied first
- Balance is equitably apportioned among recipients of elective estate property, taking first from the probate estate or revocable trusts, then from other property.
- Surviving spouse's interest in trust
- recipients of charitable lead interests
73
Can the right of election, rights to homestead, exempt personal property and family allowance be WAIVED?
Yes, before or after marriage, in writing, signed by 2 witnesses.
**NO consideration required
74
When is the right to the elective share LOST?
If she dies after filing Notice of Election but before the court determines the amount of the elective share
75
Who may make election?
Surviving spouse, her attorney, the holder of a POA or is she is incapacitated, by a guardian of her property.
76
When may an election be withdrawn?
At any time within 8 months after the T's death and before the court's order of contribution
77
Procedure for spouse making election to take statutory elective share
Election must be filed by the earlier of:
1. six months after service of a copy of the Notice of Administration OR
2. Two years after the decedent's death
78
What property IS NOT part of elective estate
- transfers for adequate consideration
- transfers with the written consent of spouse
- proceeds of life insurance in excess of cash surrender value
- T's one half of community property
- homestead if spouse validly waived her rights
- exempt property
79
What property is subject to election?
Defendant's PROBATE estate plus NON-PROBATE ASSETS such as:
- T's interest in homestead
- T's interest in "payable on death" or survivorship accounts (JT w/ROS or T by E)
- Revocable trusts
- Irrevoc. transfers where T retained right to income
- Cash surrender value of T's life insurance
- death benefits from pension
- property transferred w/in one year of death
80
How much is the statutory elective share?
30% of the decedent's elective estate. This is in addition to the spouse's right to exempt property, family allowance and homestead
81
What does the elective share statute do?
Gives the surviving spouse the election to take a statutory share of the estate in lieu of taking under the decedent's will.
82
Can insane person or drunk person still have capacity?
Yes
83
What are the grounds for a will contest?
1. Defective execution
2. Valid Revocation
3. Lack of Testamentary Capacity
4. Undue Influence
5. Fraud
6. Mistake
84
What is a no-contest clause and it is enforceable in Florida?
A no-contest clause is a provision purporting to penalize a beneficiary for contesting the will.
It is NOT enforceable in Florida
85
What happens if there is a MISTAKE as to revocation
If T mistakenly thinks he has revoked a will or codicil, a constructive trust may be imposed
86
What will court do if there was a MISTAKE of fact or law in executing will
If mistake of fact or law is proven by CLEAR and CONVINCING EVIDENCE, by statute the court may reform the will to reflect the testator's intent.
Evidence is admissible even if will is unambiguous on its face, and can be used to cure both latent (language looks clear on face) and patent ambiguities (uncertainty appears on face of will)
87
What if T is fraudulently PREVENTED from making will
Courts will impose a constructive trust in favor of those who would have taken if the will had been made.
88
How to prove a will is VOID due to FRAUD
o T must have been willfully deceived as to the character/content of the instrument or to extrinsic facts that would induce will
o 2 Types of Fraud
(1) Fraud in the Inducement - knowingly false representation causing T to make will differently (affected part invalid)
(2) Fraud in Execution - forced signature, didn’t know signing a will (entire will is invalid)
89
Effect of Gift to Lawyer and Other Disqualified Persons
Gift to lawyer or person related to lawyer is VOID if lawyer prepared or supervised the execution of the instrument
N/a if lawyer is related to T
-This prohibition CANNOT BE WAIVED
90
When is there a presumption of undue influence?
1. Substantial gift;
2. to one in a confidential relationship with T; AND
3 Who was active in procuring the will
91
How can someone establish undue influence?
§ (1) Influence on T;
§ (2) Overpowers mind and free will of T so that free will is DESTROYED;
§ (3) T’s will (or portion of it) would not have been executed but for influence
Burden of Proof - on the contestant
Pleading ,begging, nagging not enough to destroy free will
92
Who has BOP that T lacked capacity
The will contestant
93
Time in which will contest must be filed
An interested person who is served with a Notice Of Administration must file any objection within 3 months from the date of service of the notice.
Alternatively (if not service) at hearing for appointment of a personal representative
94
What happens if the execution of the will was procured by fraud, duress, mistake or undue influence?
Will is void. If only part was procured that way, only that part is void.
95
What are the requirements for a contract relating to a will?
Must be in writing, signed by the agreeing party in the presence of two witnesses.
Any such agreement is valid in Fla if valid under the laws of the jurisdiction in which it was created.
96
If T contracts not to revoke will, and revokes it anyway, what can beneficiaries do?
They can sue to have a constructive trust imposed on the assets of the estate in their favor.
Survivor in contract not to revoke wills cannot revoke will after party dies.
97
Difference between a joint will and a mutual will
Joint will is a will of two or more persons executed as a single instrument.
Mutual wills are separate instruments with reciprocal provisions
98
What is the effect of republication of will by codicil on status of pretermitted child?
It may change child's status - so a child born before republication is NOT entitled to protection of statute.
99
Pretermitted Child Statute
| child born or adopted after execution of will
Entitled to take share equal to intestate share unless he received an advancement equal to his intestate share, the omission was intentional or T had other children and left most of his property to the other parent of the pretermitted child.
100
Effect of divorce/annulment on provisions in will
Divorce and annulment revoke all will provisions in favor of ex spouse. Will is read as it ex spouse predeceased.
In Fla, this rule applies to revocable trusts, life insurance policies, and other interests that transfers to spouse upon death.
Date of "death" is date of JOD
101
What does Pretermitted spouse get if T dies without changing the will he created before marriage?
Pretermitted spouse gets intestate share, UNLESS
1. Valid pre or post nuptial agreement
2. Will includes a gift to spouse in contemplation of marriage
3. Will discloses intention not to make a provision for the spouse.
Share comes out of property passing as follows:
- partial intestacy
- residuary estate
- general legacies
- specific bequests
102
What is a pretermitted spouse?
a spouse who would likely stand to inherit under a will, but was not named in the will because she was not yet married to the testator at the time the will was written.
103
What is the doctrine of dependent relative revocation?
When T revokes will under the mistaken belief that another disposition of his property would be effective, and but for this mistaken belief, he would not have revoked will.
If the other disposition fails, the revocation also fails and the will remains in force. DRR is only applied if it comes closer to what the T tried to do, than would an intestate distribution
104
If the will is lost or destroyed (and presumption that T revoked is overcome), how are contents of will proven?
By the testimony of two disinterested witnesses or by one disinterested witness plus a photocopy of will (draft not enough)
105
What does it mean to publish a will?
To acknowledge it in front of Witnesses
106
Does Florida permit revival of revoked wills?
No, once it is revoked, it cannot be revived unless it is reexecuted or republished.
107
Does the revocation of a codicil revoke the will?
No.
108
Does the revocation of a will revoke all codicils?
Yes
109
Does Florida permit partial revocation by physical act?
No. Even if T tries to strike a clause, it is not effective.
110
When is there a presumption of revocation
If will was last seen in T's possession or under his control and cannot be found after his death, or is found in a mutilated condition, a rebuttable presumption arises that the T revoked it.
111
Revocation by Physical Act
A will or codicil can be revoked by burning, tearing, canceling, defacing, obliterating or destroying with the intent to revoke.
Accidental destruction does not revoke b/c no intent at time of destruction
If there are 2 originals, and you destroy one, both are revoked
112
Revocation of Will By Written Instrument
All or part of will can be revoked by subsequent instrument executed with the same formalities of a will
If the later will does not revoke the earlier will, then they are read together, with the later will revoking the inconsistent provisions of the earlier will.
113
How can a will be revoked prior to death?
1. By writing
2. By act
3. By operation of law
T must have capacity.
Even if there is a K saying T cannot revoke, he still can, its just a breach of K.
114
Devise
Testamentary gift of real property
115
Bequest
Testamentary gift of personal property
116
What is a pour over gift to inter vivos trust and is it valid in Florida?
Uniform Testamentary Additions to Trust Act, adopted in Florida permits T to make a bequest or devise to a trustee notwithstanding the fact that the trust may be amended or revoked after execution of will
117
What one separate writing does not have to be in existence at the time the will is created, but can still be incorporated by reference?
T can make a list specifying distribution of tangible personal property and can create or alter that list later.
Extrinsic evidence permitted to identify the writing whose terms are incorporated by reference
118
Can documents be incorporated by reference into a will?
Yes, provided that:
1. It is in existence at the time of execution
2. it is sufficiently described in the will and
3. the will manifests an intent to incorporate the document
119
What is a codicil
Supplement or amendment to existing will (CANNOT REPLACE THE WILL)
§ Execution - same formalities as will
§ Effect - republishes the will as of the date of the codicil’s execution
** May validate an invalid will
120
Wills Executed by Non-Residents
§ Will is valid in Fl if it is valid under laws of place it was executed (NO holographic or oral wills)
121
What is a military testamentary instrument and is it valid in Florida?
It is a military will. It must be executed:
1. By T who is eligible for military legal assistance;
2. in the presence of military legal counsel; and
3. in the presence of two DISINTERESTED W's
122
What is a self proving affidavit, and does Florida allow them?
A self-proving affidavit is sworn to by the T and W's before a notary public. It functions like a deposition and eliminates the need to produce Ws in court years later. So, a will can be admitted to probate without further proof.
Signatures on the affidavit can serve as signatures on the will itself.
123
What is an attestation clause and what effect does it have?
An attestation clause recites the elements of due execution and it operates as prima facie evidence of those elements.
124
May interested witnesses take under the will?
Yes, which is a change from the common law.
125
Does Florida require the will to be "published", i.e. identified to W's that it is a will?
No.
126
Presence requirement - scope of vision test
Parties signing will must be within each other's scope of vision, that is, must actually see signing
(majority of states use conscious presence test - w/in range of T's senses)
127
Does T actually have to sign his name?
No, any mark T signs with intent is ok. T can have a proxy signer too - proxy must sign at T's direction and in his presence. Proxy must sign his own name too, and can be one of the witnesses.
128
Will - signature and witness requirement
T must sign at end, in presence of W's, who must sign in the presence of T and each other.
If there are dispositive provisions after signature (but present when T signed) then the ENTIRE WILL IS INVALID.
129
What is a holographic will and is it permitted in Florida?
It is a handwritten will signed by T but not in the presence of witnesses. They ARE NOT recognized in Florida
130
Intestate succession for children who were meant to be adopted but never formalized
Allows child who was not legally adopted to share in the intestate estate of an individual who was going to adopt
o Child must prove by C&C evidence:
• (1) An agreement for adoption existed;
• (2) Natural parents performed (gave up custody);
• (3) Child performed by living w/ those intending to adopt;
• (4) Part performance by alleged adoptive parents (took child in); and
• (5) Person who intended to adopt died intestate
131
What is testamentary capacity?
T must be of sound mind and at least 18 years old at the time of making the will.
T must understand the nature and extent of his property, the persons who are the natural objects of his bounty and the nature of the disposition being made.
Will made under 18 is void unless minor is emancipated
132
What is testamentary intent?
T must have PRESENT INTENT that the instrument operates as a will.
-Parol evidence is admissible to show that instrument was not meant as will.
133
Formal requirements to execute a will
1. Intent
2. Capacity
3. Signed writing
4. In the presence of two witnesses
134
When can property escheat to state
When there are no heirs left.
135
Intestate succession for children born out of wedlock
They are heirs of mother only, unless Father:
1. marries mother
2. Is adjudicated the father before or after his death or
3. Acknowledges paternity in writing
136
Intestate succession for half blood heirs
For purposes of inheritance by collateral kin (meaning when sisters and brothers inherit from each other), half bloods take half as much as whole bloods, unless all collateral kin are half-bloods
137
Intestate succession for adopted children
Treated the same as natural children of the adopted parents.
Once parental rights are terminated, so are rights of inheritance from natural parents/children
138
Intestate succession after spouse
1. Descendants, per stirpes
2. Surviving parent(s)
3. Brother and sisters and their descendants, per stirpes
4. One-half to paternal grandparents, and one-half to maternal grandparents and their descendants, per stirpes
5. Kindred of the last deceased spouse, as if she had survived the decedent and then died.
6. State
139
What is the effect of divorce or legal separation on the right to inherit
Right to inherit is conditioned on existence of marital relationship at time of death. Divorce severs this relationship. Legal separation DOES NOT!
140
If there is no spouse, what do descendants get
The entire estate
141
When does a spouse take HALF of the INTESTATE estate
If the decedent is survived by descendants and the descendant or the surviving spouse have descendants that are not descendants of the other.
Descendants get the other half.
142
When does a spouse take the entire INTESTATE estate
1. Decedent is survived by descendants, all of whom are descendants of the surviving spouse OR
2. Decedent leaves no surviving descendants.
