Wills

Question 1

Personal Representative Removal by Court?

Answer 1

Physical or mental incapacity which renders PR unable to administer will. Court can appoint new personal representative

Question 2

Becoming a partner?

Answer 2

To become a partner, a person must secure the consent of all of the existing partners. There is no requirement that a new partner accept personal liability for existing partnership obligations.

Question 3

Who takes intestate estate Wife, child, or both?

Answer 3

If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendants, then the entire estate of the decedent passes to the surviving spouse

Question 4

Is a will that is enforceable in another state that does not conform with Florida law enforceable in Florida?

Answer 4

Yes, A will in any state other than Florida may be admissible to probate in Florida if i) the testator is a nonresident of Florida at the time of the will’s execution, and ii) the will was validly executed under the laws of the state in which the testator was at the time of the will’s execution, even if the will would not have been valid under Florida law at the time of the exectution

Question 5

Liability of General Partners

Answer 5

Another partner can recover against a general partner, and also a recently converted limited partner w/i 90 days if new partner reasonably believed that newly converted partner was a general partner.

Question 6

Does a personal representative have to consult with the beneficiaries before selling assets?

Answer 6

No, a PR is not required to seek independent investigation before selling assets or approval from the beneficiaries to sell assets; however, they are required to act prudently in the administration of the estate.

Question 7

What percentages from intestate: Spouse, 2 children from other marriage?

Answer 7

50 to the spouse, 25 to each kid.

If there are both a surviving spouse and lineal descendants who are not lineal descendants of the surviving spouse, the spouse receives one-half of the intestate’s estate and the descendants receive the other half.

Question 8

Division of estate by half-bloods - sister dies leaving blood brother and half-blood brother. Who gets what?

Answer 8

Half blood gets 1/3, full gets 2/3

If property descends to the collateral kindred of the intestate and some of the collateral kindred are of the whole blood and some are of the half-blood to the intestate, the kindred of the half-blood will inherit half of what the kindred of the whole blood would inherit.

Question 9

Adopted child’s rights to intestate succession?

Answer 9

No rights to birth, rights to adoptive as if by birth

Question 10

What passes through probate automatically?

Answer 10

Property titled in joint tenancy, joint bank accounts, life insurance policies with a beneficiary, inter vivos gifts

Question 11

Who has standing to contest the probate of the will?

Answer 11

The only parties with standing to contest the probate of a will are parties who would financially benefit if successful, generally, the decedent’s heirs at law.

Question 12

What happens when beneficiary dies before testator (lapses)?

Answer 12

The gift lapses and goes into the residuary unless otherwise provided by the will

Question 13

Joint Personal Representatives: Must all concur on acts related to administration of the estate?

Answer 13

No, only a majority of the joint personal represntatives are required to take action on an estate (unless will is executed prior to 1988)

Assets may be sold to pay off creditors only in certain circumstances

PR’s are not required to follow the advice of experts

Question 14

Demonstrative devise =

Answer 14

a pecuniary gift that identifies a particular fund or asset as the source of payment.

Question 15

Specific devise =

Answer 15

gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate.

Question 16

General devise =

Answer 16

gift of personal property that the testator intends to be satisfied from the general assets of his estate.

Question 17

Residual devise =

Answer 17

devise of the estate remaining when all claims against the estate and all specific, general, and demonstative devises have been satisfied

Question 18

Where does gift go if beneficiary dies before the testator?

Answer 18

The gift lapses and passes through intestacy unless there is a residuary clause

Question 19

Per stirpes distribution

Answer 19

When someone dies without a will the division of the decedent’s estate is made at the first generational level even if that level has no takers

Question 20

Does the beneficiary take subject to any encumbrances on property or is it paid out of the estate automatically?

Answer 20

There is no exoneration of liens unless the will so directs. The beneficiary takes the property subject to whatever encumbrances are on the property.

Question 21

What happens if a will has been lost or destroyed?

Answer 21

If a will has been lost or destroyed and cannot be located at the testator’s death adn the presumption of revocation has been overcome, Florida allows probate of the will provided that a correct copy (carbon or photocopy) is provided and is proved by one disinterested witness

Question 22

What happens if broken will contract?

Answer 22

A testator retains the ability to revoke his will at any time prior to his death, even if he has executed a valid contract not to revoke the will. If the contract is a valid contract, the other party to the contract may bring a breach of contract action against the estate.

Question 23

Ancillary administraction =

Answer 23

ancillary administration refers to administering an estate in which a non-resident of Florida dies and has assets in Florida

Question 24

Formal administration required when

Answer 24

the value of the estate exceeds $75k

Question 25

Summary administration =

Answer 25

for estate in which the decedent has been dead for at least two years or in which the value of the estate subject to adminstraction in FLorida is $75k or less.

Question 26

No administration is required when…

Answer 26

a decedent leaves only personal property; the value of which does not exceed the sum of the exempt property, preferred funeral expenses, and reasonable and necessary medical and hospital expenses of the last 60 days of the last illness

Question 27

Presence or Actually witness signing

Answer 27

Majority = each party must be conscious of where the other parties are and what they are doing

Minority = actually have to witness

Question 28

When is a will self-proving (can admit to probate without witnesses)

Answer 28

A will may be made self-proving if there is an acknowledgment of it by the testator and the affidavits of the witnesses before an officer authorized to administer oaths and evidenced by the officer’s seal (notarized)

Question 29

What constitutes a valid will?

Answer 29

For a document to be a valid will in Florida, it must be a writing that the testator signs with present testamentary intent in the joint presence of two attesting witnesses who understand the significance of testator’s act.

Question 30

Holographic will (not recognized) =

Answer 30

a document in the testator’s handwriting and signed by the testator

Question 31

Revival of revoked wills?

Answer 31

Generally, there is no revival of a revoked will in Florida. Once revoked it is dead unless re-executed with the same formalities

Exception for DRR - if mistake of fact or law. Then reverts back to the old one if matches intent

Question 32

Lack of mental capacity =

Answer 32

The testator lack the requisite mental capacity if she, at the time of execution or revocation, did not have the ability to understand: i) the nature and extent of her property; ii) the persons who were the natural objects of her bounty; and iii) the effect of the disposition she is making.

Question 33

Who can pursue legal action against a partner?

Answer 33

A partnership may pursue a legal action against a partner for breach of the partnership agreement or for violating a duty owed to the partnership that caused the partnership harm. Additionally, a partner may pursue a legal action against the partnership or another partner to enforce the partner’s rights under the partnership agreement

Question 34

Who has standing to contest the will?

Answer 34

The only parties with standing to contest the probate of a will are parties who would financially benefit if successful, generally the decedant’s heirs at law.

Question 35

When is removal of a PR appropriate?

Answer 35

PR may be removed if physical or mental incapacity rnder her incapable of discharging her duties. Court will step in to appoint new PR

Question 36

Property not passing through probate?

Answer 36

Property titled in joint tenancy; deposit account in the name of two or more people; life insurance with a valid beneficiary; inter vivos gifts

Question 37

When is intervivos gift an advancement against heir’s share of estate?

Answer 37

Declared in a contemporaneous writing by the decedent, or acknowledged in writing by the heir to be an advancement

Question 38

Hotchpot procedure?

Answer 38

Value of property advanced (FMV at time of transfer), added back into the estate, and the resulting estate is divided by the number of heirs taking, the advancement amount then deducted from heir who advancement was given

Question 39

When is a will in another state admissible to probate?

Answer 39

1) the testator is a nonresident of FLorida at the time of the will’s execution, and 2) the will was validly executed under the laws of the state in which the testator was at the time of the will’s execution, even if the will would not have been valid if executed under Florida law

Question 40

What is pretermitted spouse (new spouse added w/o modification of will) entitled to take

Answer 40

intestate share of the testator’s estate.

Question 41

Revival of revoked will?

Answer 41

Once a will is expressly revoked in a later will, it is legally dead and cannot be revised unless the will is re-executed with the same formalities or republished by a codicil to the will (unless DRR applies)

Question 42

When is DRR applicable?

Answer 42

DRR (Dependent relative revocation) a court may disregard the revocation of earlier will based on mistake of fact or law. DRR is an equitable doctrine –> follows intent of testator

Question 43

who is the best gal in the world?

Answer 43

VALERIE!

Question 44

What happens when a gift lapses?

Answer 44

the gift fails and goes into the residuary estate, unless anti-lapse statute saves the gift

Question 45

Anti Lapse Statute –>

Answer 45

unless a contrary intent appears in the will, a predeceasing beneficiary’s surviving descendants who is a grandparent or a descendant of a grandparent of the testator takes the property to which the beneficiary would have been entitled to had he survived the testator.

Question 46

Intestate + surviving spouse + lineal descendants who are not lineal descendant of surviving spouse =

Answer 46

1/2 to spouse, 1/2 split among lineal descendants

Question 47

intestate + surviving spouse + all lineal descendants =

Answer 47

all to surviving spouse (unless homestead applies)

Question 48

Even a testator who has validly contracted not to revoke a will may do so.

Answer 48

However, if the contract not to revoke is valid, the other party may have an action against the estate for break of contract.