Wills

Question 1

What are lineal vs collateral heirs

Answer 1

Lineal descendants include children, grandchildren, etc. Collateral heirs (e.g., siblings) stem not from one another but from a common ancestor

Question 2

What is a per stirpes distribution

Answer 2

Per stirpes distribution means that the descendants of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir. Florida follows a strict per stirpes rule, determining stirpital shares at the first generational level, whether or not there are any living takers at that level

Question 3

The surviving spouse takes the entire intestate estate if: (one of what two scenarios occurs)

Answer 3

if:

a. The decedent is also survived by descendants, all of whom are also descendants of the surviving spouse, and the spouse does not have any other descendants; or
b. The decedent leaves no surviving descendants

Question 4

When is surviving spouse entitled to one-half of the intestate estate

Answer 4

If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other
Note that in that case, the other half of the estate goes to the descendants of the decedent

Question 5

What is the effect of divorce or legal separation on the right to inherit

Answer 5

The right of a spouse to inherit from the decedent is conditioned on the existence of the marital relationship at the time of death. Divorce severs this relationship; legal separation does not

Question 6

The portion of the estate not going to a surviving spouse is distributed to other heirs based on five categories until takers are found; what are those five categories and what is the order

Answer 6

(i) Descendants, per stirpes;
(ii) Parents or the surviving parent;
(iii) Brothers and sisters and their descendants, per stirpes;
(iv) One-half to paternal grandparents and one-half to maternal grandparents and their descendants, per stirpes (Both halves to one side if no takers on the other side);
(v) Kindred of the last deceased spouse, as if she had survived the decedent and then died.
Failing all of the above, the estate escheats to the state

Question 7

For purposes of intestate succession, how are adopted children treated in relation to their adopting parents and to their natural parents

Answer 7

Adopted children are treated the same as natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where an adopting parent marries one of the natural parents or the child is adopted by a close relative. Any parent, natural or adoptive, is barred from inheriting from a child if that parent’s parental rights were terminated.

Question 8

For purposes of intestate succession, how are stepchildren and foster children treated

Answer 8

Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent. However, the doctrine of adoption by estoppel applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt him

Question 9

How are posthumous children treated for the purposes of intestate succession

Answer 9

In Florida, heirs conceived before the decedent’s death but born thereafter inherit intestate property as if they had been born in the decedent’s lifetime

Question 10

How are nonmarital children treated for the purposes of intestate succession

Answer 10

Children born out of wedlock are heirs of the mother but not of the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing

Question 11

For half bloods-brothers and sisters who have only one common parent-how does inheritance by collateral kin work

Answer 11

Florida provides that half bloods take half as much as whole bloods, except where all collateral kin are half bloods

Question 12

What is the only way to disinherit an heir

Answer 12

The only way to disinherit an heir is to otherwise dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent’s express wishes

Question 13

What happens in the case of simultaneous death

Answer 13

Florida has adopted the Uniform Simultaneous Death Act, which provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and if the order cannot be established, the property of each decedent is disposed of as if he had survived the other. (In the case of a tenancy with right of survivorship, one-half of the property passes through to the estate of each.) The USDA applies unless there are specific contrary provisions in the will (or other instrument). Florida has not adopted the UPC and revised USDA rule that requires a person to survive a decedent by 120 hours in order to take property as an intestate heir, will or life insurance beneficiary, or surviving joint tenant.

Question 14

What four things are needed for a beneficiary or heir to disclaim an interest

Answer 14

To be valid, a disclaimer must

(i) be in a writing identified as a disclaimer;
(ii) describe the interest or power being disclaimed;
(iii) be signed, witnessed, and acknowledged; and
(iv) be delivered

Question 15

What happens to a persons interest in an estate when that person, as a beneficiary or heir, successfully disclaims their itnerest

Answer 15

It results in the interest passing as though the disclaimant died immediately before the interest was created

Question 16

What are the requirements for one to qualify as a qualified disclaimer for federal gift tax purposes

Answer 16

the disclaimer must be made within nine months after the decedent’s death or the beneficiary’s 21st birthday.

Question 17

Does a spendthrift provision or similar restriction damage the right of a beneficiary or heir to disclaim?

Answer 17

No–the right to disclaim will still exist

Question 18

Is a disclaimer valid against creditors of the disclaimant, including federal tax liens?

Answer 18

While a disclaimer is valid as against creditors of the disclaimant because the disclaimant never owner the property, a disclaimer cannot be used to defeat a federal tax lien

Question 19

In what five scenarios is a right to disclaim an interest barred?

Answer 19

(i) the beneficiary gives a written waiver of the right to disclaim;
(ii) the beneficiary accepts the property or any of its benefits;
(iii) the beneficiary voluntarily assigns, transfers, or encumbers the interest, or contracts to do so,
(iv) the property is sold pursuant to judicial process; or
(v) the beneficiary is insolvent

Question 20

What happens in intestacy in the case of bigamy

Answer 20

Intentional bigamous conduct bars the bigamous spouse from inheriting the other’s estate

Question 21

What is the Slayer Statute

Answer 21

A person who wrongfully participates in the killing of another may not receive any benefits (by will, intestsacy, joint tenancy, etc.) as a result of the death. The property passes as if the killer had predeceased the victim. Joint tenancies and tenancies by the entirety are severed and treated as if they were tenancies in common; i.e., the killer neither forfeits his fractional interest in the property nor receives the victim’s fractional interest. The evidentiary standard used in determining whether a person killed a victim is “greater weight of the evidence”; a conviction is not required

Question 22

How do advancement of intestate shares work in FL

Answer 22

An advancement is a gift made to a next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor’s estate. In Florida, no gift is considered an advancement unless this intention is declared in a contemporaneous writing by the decedent, or acknowledged in writing as such by the heir. If found to be an advancement, the gift’s value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient’s share.

Question 23

What is the satisfaction of legacies

Answer 23

A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will, if the testator intends the transfer to have that effect. In FL, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. However, a writing is not required if the testator gives specifically described property to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption

Question 24

What constitutes a will, what is a codicil, and may a will be electronic?

Answer 24

A will is an instrument executed with certain formalities that is testamentary in character, revocable during the maker’s lifetime, and operative at the testator’s death. A codicil is a supplement to a will that modifies it. In FL, a will can be electronic.

Question 25

Because a will is not operative until the testator’s death, a beneficiary has a ____ (not a property interest) until that time

Answer 25

an expectancy

Question 26

What is the rule of testamentary intent

Answer 26

The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect (e.g., that it was a sham will).

Question 27

What is a conditional will

Answer 27

A conditional will is one that provides that it is to be operative only if a stated condition is satisfied, e.g., “if I do not return from this trip.” Note that a court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur

Question 28

What is the testamentary capacity required

Answer 28

The testator must be of sound mind and at least 18 years old or an emancipated minor at the time

Question 29

What is the major formal requirement of a will

Answer 29

In Florida, a will must be signed at the end by the testator in the presence of two witnesses, who must sign in the testator’s presence and in the presence of each other.

Question 30

For the formal signature requirement of creation of a will, what is the rule about when someone may sign for the testator and the order of the signing

Answer 30

Any mark affixed by the testator with the intent that it operate as his signature satisfies the signature requirement. The testator’s signature may be made by another person at the testator’s direction and in his presence. If the proxy signer signs his own name as well, he may be counted as an attesting witness. The order of signing is not critical as long as the signing is done as part of a single contemporaneous transaction.

Question 31

Where must the will be signed, and is an electronic signature allowed?

Answer 31

In Florida a will must be signed at the end. This requirement is satisfied if the testator’s signature is physically in immediate juxtaposition to the will’s dispositive provisions. For any instrument made under the Florida Probate Code, a signature requirement may be satisfied by an electronic signature.

Question 32

Does Florida require a will to be published?

Answer 32

No

Question 33

Are interested witnesses allowed to take under a will

Answer 33

In Florida, yes

Question 34

What is an attestation clause

Answer 34

An attestation clause recites the elements of due execution and is prima facie evidence of those elements. It is useful in the event a witness forgets or misremembers the facts surrounding the execution.

Question 35

What is a self proving affidavit

Answer 35

A self-proving affidavit is sworn to by the testator and witnesses before a notary public. It functions like a deposition and eliminates the need to produce the witnesses in court years later. Signatures on the affidavit can serve as the signatures needed on the will itself.

Question 36

Are holographic or oral wills recognized in FL?

Answer 36

No

Question 37

What are the three requirements for a properly executed military testamentary instrument to be a valid will in FL

Answer 37

the instrument must be executed:

(i) by a testator who is eligible for military legal assistance;
(ii) in the presence of military legal assistance counsel; and
(iii) in the presence of two disinterested attesting witnesses

Question 38

How does a foreign will operate in FL

Answer 38

A will (other than holographic or oral will) executed by a nonresident in FL is valid in FL if validly executed under the law of the place where the testator was at the time of execution

Question 39

Can a attorney be liable for negligence in will creation?

Answer 39

An attorney may be liable to beneficiaries harmed by his negligent preparation or execution of a will even though the will beneficiaries are not in privity of contract

Question 40

How does integration of the different parts of the will work? How can proof of integration be provided?

Answer 40

Physical attachment, internal coherence of pages, or when the pages, read together, set out an orderly dispositional plan raises a presumption that they were present and intended to be part of the will when it was executed. Proof of integration can also be provided by testimony or other extrinsic evidence

Question 41

What is a codicil, what formalities are required, and how does it affect the execution date of the will

Answer 41

A codicil modifies a previously execute will and must itself be executed with the same formalities. Under the doctrine of republication by codicil, a will is treated as having been executed on the date of the last codicil. This date may be important, e.g., for purposes of the pretermitted child statute, to determine whether a child was born after the will’s execution.

Question 42

A document may be incorporated by reference into a will, provided what three things? What is the exception to this

Answer 42

A document may be incorporated by reference into a will, provided:
(i) it is in existence at the time of execution,
(ii) it is sufficiently described in the will, and
(iii) the will manifests an intent to incorporate the document.
An exception to the requirement that the document exist at execution permit a Florida testator to refer in her will to a list specifying the distribution of items of tangible personal property, and to write or alter that list later. Extrinsic evidence is admissible to identify the writing whose terms are to be incorporated by reference.