Wills and Trusts Flashcards
The testator is PISST
What are the technical requirements of a will?
- Present testimentary intent
- In writing
- Signed by the testator
- Scope of vision of two witnesses
- Testatator with capacity
6.
How is the intestate estate divided among a surviving spouse and descendants of the testator?
How is the intestate estate divided after exhausting immediate descendants and a surviving spouse?
Simultaneous Death
Florida adopted the Simultaneous Death Act.
When a disposition depends on the order of death between two persons, each person’s estate is treated as though he had survived the other, unless there are specific contrary provisions of the will.
What is required for effective disclaimer?
- Writing
- Describing the disclaimed interest
- Signed
- Witnessed
- Delivered (& recorded if real property)
When is disclaimer barred?
WAIV Sale
- Written waiver of right to disclaim
- Acceptance of property/benefit
- Insolvent beneficiary
- Voluntary assignment or encumberment
- Judicial sale
What is the scope of vision test?
Witnesses are considered present if they could have seen the testator signing the will if they were only to look.
Self-Proving Will
- All staturory will formalities met
- Signed before a notary public
Incorporation by Reference
A document may be incorporated by reference if:
- Already in existence at the time
- Sufficiently described in will
- Will shows intent to incorporate the document
Exception: A list of tangible personal property may be referenced and created and altered later
Pretermitted Spouse Rule
A spouse who marries a testator after the execution of a will takes an intestate share, unless:
- A pre-marital agreement dictates otherwise
- The spouse is explicitly included
- The spouse is explicitly excluded
Effect of Divorce on Prior Spouse
(Wills and Trusts)
Prior spouse is treated as having pre-deceased the testator
How does revocation by physical act work?
A will or codicil can be revoked by
- Burning, tearing, cancelling, defacing, obliterating, or destroying
- The orginal instrument, or a true copy
- Concurrently with the intent to revoke
- By the testator, or at his direction and in his presence
Partial revocations by physical act are a nullity.
Dependent Relative Revocation (DRR)
When a testator holds a mistaken belief about the disposition of his property,
but for which he would not have revoked a will,
the will is treated as if it were not revoked.
Anti-Lapse Statute
If a predeceasing beneficiary has surviving descendants,
they shall take his share of any devise per stirpes if
the predeceased beneficiary was the testator’s grandparent or descendant of a grandparent.
Ademption
Failure of a devise becuase the property is no longer in the testator’s estate at the time of death.
ONLY applies to specific devises;
NOT applicable for general devises, or demonstrative legacies
Spouse’s Elective Share
30% of the elective estate
Must file on or before the earlier of:
- 6 months of notice of administration OR
- 2 years after death
Elective Estate
(HIP3R Life Insurance)
- Probate estate
- Descedant’s interest in protected homestead
- POD accounts & JT/TBE property
- Revocable trusts
- Irrevocable transfers with a right to income or principal
- Cash proceeds from life insurance
- Pension death benefits
- Property transferred within one year of death
Homestead Estate
(elements and effect upon death)
Elements:
- 1/2 acre inside a municipality or
- 160 contiguous acres outside,
- and not held as JT/TBE property
Effect:
- Not devisable if owner is survived by spouse or descendants.
- May be devised to spouse in fee simple if no minor children
- Exempted from forced sale by creditors
- If improperly devised, passes to decedent’s spouse as a life estate, with a vested remainder to descendants per stirpes
Family Allowance
$18,000 to surviving spouse and lineal heirs who were receiving or owed support
Amount reserved on top of any amount entitled to under the will
Must be petitioned for specifically
Personal Property Set-Aside
- $20,000 of household furnishings
- 2 of decedent’s motorvehicles
- All qualified tuition programs
On top of any amount receiving under the will, homestead claims, or by intestacy
Undue Influence
- Influence was exherted
- Effect was to overpower the mind and free will of the testator
- The product was a will that would not have been executed otherwise
*Presumed in the case of a person with a confidential relationship who was active in procuring the will
Capacity
Testator must be able to:
- Understand the nature of his property
- Understand the persons who are the natural objects of his bounty
- Understand the practical effect of the testamentary act
Order of Creditor Claims
[Administrative Family Debt Means Families Can’t Buy Anything else]
- Administration costs
- Funeral costs up to $6000
- Debts and taxes owed under federal law or in favor of the state
- Medical costs for last 60 days of life
- Family allowance ($18,000)
- Arrearage from court-ordered child support
- Business debts accruing after death (Can’t exceed business assets)
- All other claims
Time to Notice/File Claims on D’s Estate
Notice
- Publish notice once per week for 2 weeks in newspaper in the county of administration
- Personally serve known/ascertainable creditors within 3 months
- Personally serve notice of administration on spouse, beneficiaries, trustees, persons entitled to exempt property
File Claim
Creditor with notice must file before the later of:
- 3 months after publication
- 30 days after service of notice
Creditor without notice must file within 2 years of death
