Wills - Courtney Flashcards

Question

LIMITATIONS ON TESTAMENTARY DISPOSITIONS: **Elective Share**

Answer 1

* Share surviving spouse is entitled to demand if unhappy with what she is receiving from the decedent’s estate (either through intestacy or will). * May take elective share in addition to the right to homestead, exempt property, and family allowance * 30% of the elected estate in Florida

Answer 2

1. SS must make her **election w/in: 6 months after notice of administration or 2 years after Decedent's death** 2. Spouse can withdraw petition anytime before final judgement 3. May be filed by spouse or her attorney-in-fact * IF attorney‐in‐fact or guardian files petition, **court must determine whether election is in spouse's best interests.** 4. must give notice of time & place set for hearing to interested parties 5. if notice given to all interested persons SS may petition court for an extension of time for making an election 9 mths after decedent’s death 6. court in the county of decedent’s domicile

Answer 3

SS of a decedent who dies domiciled in this state has a right to an elective share amt equal to: **30% of the elected estate** Including: * Decedent’s probate estate; * Other property held in right of survivorship; * Property in a revocable trust; * Cash surrender value of insurance policies on the decedent’s life; * Death benefits payable under retirement plans; * Certain transfers within one year of the decedent’s death; * Property transferred in satisfaction of the elective share; * Property held in a discretionary trust for the settlor, or a trust where the decedent had the right to income or principal; AND * Accounts or securities in “Pay on Death” accounts and decedent’s interest in accounts held in right of survivorship.

Answer 4

* Property passing to the surviving spouse * Includes: * Any devise to the spouse in decedent’s will; * Any share the spouse takes by intestacy; * Life insurance policies payable to the spouse; * Retirement benefits plans payable to the spouse; and * The value of property spouse is getting by right of survivorship or otherwise. * Any balance is satisfied from the decedent’s estate or revocable trusts.

Answer 5

1. After-born/adopted child: **receives an intestate share** [same amount would have received had estate been intestacy] * Exception: will devised all or substantially all of estate to other parent of omitted child and that other parent survives Testator 2. Testator had children living when will was executed & devised portions of estate to them, omitted after-born/adopted child entitled: **share in portion of Testator’s estate devised to Testator’s then living children as if child had been given an equal share of that portion of the estate.** [prior kids got gifts, then after born kid gets gifts too] 3. If Testator had living children at time of will’s execution but children received nothing: **gets nothing** [be weary that codicil republish the will …so if its republished w/o new kid then he gets nothing]

Answer 6

Wills are always to be construed in accordance with the discernible will of the testator. [intention of the testator governs]

Answer 7

proponent must show will offered for probate is actually the will that the testator intended to make, & no insertions or removals of pages from the will have occurred

Answer 8

UPC recognizes common-law doctrine of incorporation by reference, which permits inclusion by reference of unattested documents as part of a will if: 1. **Writing was existence at the time of execution of the will;** 2. **Language of the will manifests this intent; &** 3. **Describes the writing sufficiently to permit its identification**

Answer 9

**Any person who participates, either as a principal, co-conspirator, or an accessory before the fact, in the felonious and *_INTENTIONAL_* killing of any other person: may not receive any benefit as a result of Decedent's death** * **If NO murder conviction/charges brought: probate court may make its own determination based on greater weight of the evidence--lower standard of proof than in criminal case--regarding forfeiture.** * **Slayer rule does not apply:** accidental, reckless or negligent deaths * **Distribution of Property** * 1) Estate property: deemed to have predeceased decedent * 2) Joint tenancy: loses right of survivorship, & joint tenancy converts to a tenancy in common [slayer keeps his half & other half distributed to decedent’s estate] * **Proceeds of Insurance:** if slayer is beneficiary or assignee of life insurance policy of decedent, or joint policy holder, proceeds will be paid to the decedent’s estate or contingent beneficiary is one is noted * **Affects killer’s rights only** – killer’s descendants may be able to take: By intestacy per stripes distribution or by application of the anti-lapse statute.

Answer 10

**Both end heirship rights** [if not divorced & remarries then considered constructive divorce] * **Ex‐spouse is treated as if she predeceased the testator.** * Any provisions in favor of ex‐spouse are generally void. * Remarriage of the parties does not revalidate the provisions voided by the dissolution or annulment.

Answer 11

**file a formal disclaimer, in whole or in part, any interest in or power over property** * In order to be effective, a disclaimer must be: Be in writing or other record; Declare the disclaimer; Describe the interest or power to disclaim; Be signed by the disclaiming party; & Be delivered or filed * **It is permissible for a disclaimer to be only: partial** * It is impermissible to disclaim where: disclaimant is not barred by a written waiver of right to disclaim; disclaimant has not accepted the interest; disclaimant has not voluntarily assigned, conveyed, encumbered, pledged, or transferred the interest; or judicial sale of the interest has not occurred

Answer 12

* **Disclaimer relates**: back to date of death of decedent * **Disclaimant is treated as having**: predeceased testator * **Two reasons people disclaim are**: Beat the rights of the creditor &Taxes * Under the UPC, a disclaimer cannot be used: to abridge the right of any person to disclaim interest under another statute & do not affect the additional disclaimer requirements for inheritance tax or other statutory purposes [can’t use disclaimer to alter payouts; therefore, if you do disclaim heirs will still receive the same % of the estate]

Answer 13

**If, at time of Testator’s death, specifically devised property is NOT part of the testator’s estate, the gift adeems (fails)** * **Ademption by extinction can only occur**: *in reference to specific request* * Ex: Tom Testator executes a will devising “my 5 antique cars” to Alan. If Tom dies owning the 5 cars, then Alan receives the entire collection. If Tom had sold 3 cars before his death, the specific devise partially adeemed by those cars, and Alan would receive only the remaining 2 cars. If Tom had no cars upon his death, then the entire specific devise adeems.

Answer 14

If specifically devised property is sold, transferred or mortgaged by a conservator or agent acting by a durable power of atty for an incapacitated principal, the devisee has the right to general devise [pecuniary gift] equal to the sale price, unpaid loan amount, insurance proceeds, or the recovery * Any amount due on property subject of specific bequest to a legatee, then legatee due to receive payments still due on the specific bequest after the decedent’s death * Item no longer in existence, but there is a replacement prop then beneficiary gets replacement property

Answer 15

* Any balance of the purchase price, together with any security agreement, owe by a purchaser at the testator’s death by reason of sale of property; * Any amount due for the condemnation of the property and unpaid at the testator’s death; * Any proceeds unpaid at the testator’s death on fore or casualty insurance on or other recovery for injury to the property; * Any prop owned by the testator at death & acquired as a result of foreclosure, or obtained in lieu of foreclosure, of the security interest of s specifically devised obligation * Any real property or tangible personal property owned by the testator the testator at death which the testator acquired as a replacement for specifically devised real property or tangible personal property

Answer 16

* Dispositions of stock are often troublesome b/c it is unclear whether Testator intended a general or a specific bequest. * If the will says “my fifty (50) shares of Wood stock to Jimmy,” the possessive pronoun makes this a specific disposition of the identified shares (i.e., those the testator owns); if she owns none at her death, the bequest is adeemed. * If the will says “fifty (50) shares of Vladivos stock to Leonid,” and the testator owned no such shares at her death, the court interprets this as a general bequest, and Leonid is entitled to the value of 50 shares of Vladivos stock as of the date of the testator’s death.

Answer 17

**similar to idea of an advancement; it occurs when a testator makes an inter vivos gift of property to a beneficiary of a general or residuary disposition with intent that provision of will be thereby satisfied** [applies to general legacies] * inter vivos gift may satisfy a will bequest: in part or in whole [full or partial] * Property a testator gave in his lifetime to a person is treated as a satisfaction of a devise only if: 1. The will provides for deduction of the gift; 2. Testator declared in a contemporaneous writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise; or 3. evisee acknowledged in writing that the gift is in satisfaction of the devise or that its value is to be deducted from the value of the devise

Answer 18

If a person is given property under a will and the property is subject to a lien: the beneficiary takes the property subject to the obligation * However, if Testator in the will specifies for the executor to pay the debt on the property: then property is taken free of the mortgage, but it must be specific language in the will to pay the debts on the particular prop, not simply “I direct my executor to pay all my debts,” b/c that will not address the mortgage issue its boilerplate …doesn’t amount to direct request to pay mortgages

Answer 19

exists when Testator makes gift to number of persons as group, and size of group cannot be determined until class closes * **Closing of Class—Maximum Membership**: As a general rule: class closes on date the will becomes effective [testator’s death] 1. Rule of convenience- person must be born before the period of distribution in order to share in class gift 2. Distribution date: date when immediate or postponed class gift takes effect in possession or enjoyment

Answer 20

**when a disposition fails b/c** **the beneficiary predeceases testator** * Lapsed dispositions pass to the residuary estate, or, if there is no residuary provision, they pass by intestacy

Answer 21

**lapse of gift prevented, if intended beneficiary left descendants,** then they take by representation, but beneficiary must be descendants, grandparents, or descendant’s of decedents grandparent’s * Exception: testator specifies otherwise [e.g., Blackacre goes to Shayla & if she does not survive me then to Asia] * If a gift does lapse: falls into the residue [IF THERE IS A RESIDUARY CLAUSE THEN THERE WILL BE NO INTESTACY, B/C IT ADDRESSES ALL THE DECEDENT’S PROPERTY] * If there are multiple residuaries: if one dies [w/o heirs] then the remaining residuaries will split the amount * If one residuary legatee slays the testator: slayer loses right & then the remaining residuaries will split the amount * If the only residuary slays the testator: then residuary clause will fail and result in partial intestacy

Answer 22

The UPC requires that words of survivorship for class gifts: need express language; therefore, need to state that “anti-lapse statute does not apply.”

Answer 23

**Revocatory act** **Subsequent will** **Divorce** * If the testator is divorced after making a will, all provisions of the will in favor of or relating to the spouse so divorced: all will provisions in favor of ex-spouse are revoked, unless, evidence testator did not want provisions revoked

Answer 24

1. A “revocatory act on the will” includes: **tearing, burning, canceling, writing over, scratching out, obliteration, or destroying will of any part of it w/ intent to destroy** [but it must be original not a copy] 2. Must be done ***_w/ an intent to revoke will_*** 3. If testator does not perform revocatory act, but directs another to perform act [by proxy]: it must be in conscious presence of & by direction of testator 4. **Florida does permit partial revocation of a will or codicil by physical act.** 5. Will that was in testator’s possession cannot be found or is found torn or otherwise destroyed: Presumption that testator physically destroyed will with intent to revoke it.

Answer 25

1. Revocation by a subsequent will revoke prior will in its entirety or any part thereof 2. A will, duly executed and proved, that contains an express clause of revocation revokes all former wills. 3. If subsequent will does not expressly revoke previous will, execution of subsequent will wholly revokes previous will: if it is inconsistent with prior will [partial or whole revocation is dependent upon whether inconsistency affects a part or the whole] 4. Testator is presumed to have intended a subsequent will to replace rather than supplement a previous will if: completely disposition of testator’s estate 5. If a subsequent will does not fully dispose of Testator’s estate, it will revoke the previous will: only to extent that it is inconsistent with prior will

Answer 26

Revoke a will in anticipation of a subsequent will, but the subsequent will is invalid the courts will reinstill the first will b/c it assumes a prefererence for will over intestacy

Answer 27

1. The general rule is that: once will revoked, it is no longer authoritative [1st will, then create a 2nd. If 2nd revoked it doesn’t go back to 1st], but it can be republished, re-stated or re-executed(sign it again) [revived] 2. However, it can be revived: if it is evident from the circumstances of the revocation of the subsequent will or from the testator’s contemporary or subsequent declarations that testator intended the previous will to take effect as executed * Republication can be made by: codicil, re-executing (simply resigning [re-attesting the will]) 3. A codicil to a will: restates revoked will & makes it written as of the day of the codicil

Answer 28

1. Provisions of Decedent’s will stating material provisions of K; 2. Express reference in Decedent’s will to a K & extrinsic evidence proving terms of K; or 3. Writing signed by Decedent evidencing K ## Footnote **UPC will uphold as valid a contract to dispose of by will all or part of a person’s property, whether real or personal.**

Answer 29

1. If a will is traced to the testator’s possession & cannot be found after death: presumption that the will was revoked 2. If the will is not in possession of the testator: then presumption is not raised 3. Copies may only be used if the original will was in the hands of third party [atty] and that party has lost it

Answer 30

**donative intent, delivery & acceptance** Constitutes an irrevocable gift once accepted

Answer 31

**an inter vivos gift made w/ the understanding that the donee takes possession upon delivery, but does not acquire title unless donor dies of a feared imminent death** * Elements: (1) donative intent, (2) delivery & (3) donor must dies from an imminently feared death [not normal fear of death, but some dangerous impending matter] * Delivery is mere possession until the death, when done obtains title

Answer 32

**In a will contest, a person interested in the distribution of the estate objects to the admission of the will to probate on the ground that the will is invalid for some reason.** The grounds for contest of a properly executed will are: 1. Lack of testamentary capacity 2. Undue influence 3. Mistake: very little a court will do 4. Fraud: if can be proven will not be given affect

Answer 33

* Lack of sound mind & memory * An **insane** **delusion** is defined as: mere figment of the imagination or a belief that is so against the evidence & reason that it must be the product of derangement 1. A person who suffers from an insane delusion is not necessarily deprived of capacity to make a donative transfer. 2. A particular donative transfer is invalid, however, to the extent: that is was a product of an insane delusion [leave my estate to the Peter Pan, because we both can fly] 3. Mere eccentricity does not constitute an insane delusion. Similarly, a suspicion with some basis in fact is not an insane delusion.

Answer 34

sufficient to void a will if: wrongdoer exerted such influence over donor that it overcame donor’s free will & caused donor to make a donative transfer that donor would not otherwise have made ## Footnote **undue influence: only invalidates portion unduly influenced**

Answer 35

1. **reliant**[need your help], dominant-subservient[control over] OR **confidential** **relations** AND 2. ***suspicious circumstances*** surrounding the preparation, formulation or execution of the will Relevant factors: * Extent to which donor was in weakened condition * Extent to which the alleged wrongdoer participated in preparation of will * Did testator receive independent advice from an atty or competent disinterest party * Created in secrecy or haste **If these factors are shown by clear and convincing evidence, the burden of proof returns to the proponent of the will to show that the gift or bequest was not the product of undue influence.**

Answer 36

*if can be proven will not be given affect* * If fraud is alleged with respect to only a part of the will, the court may reject that part and admit the rest to probate. The legacy that is void due to fraud then falls into the residue, or, if there is no residuary clause, passes by intestacy. * If the entire will is tainted, all the property will pass by intestacy.

Answer 37

**uncertainty in meaning of a portion of the will** * Once an ambiguity, patent or latent, is established, both direct and circumstantial evidence of the donor’s intention may be considered in resolving the ambiguity in accordance with the donor’s intention.

Answer 38

**an “interested” person [e.g., an heir]**

Answer 39

**Clause in a will that attempts to disqualify anyone contesting the will from taking under it; aka No-Contest Clauses** **Unenforceable in Florida**

Answer 40

doctrine that permits the terms of a charitable trust to be modified by a court to achieve a purpose "as close as possible" to Donor's original intent where the original purpose cannot be legally or practically achieved

Answer 41

**three different persons** * A settlor can be both a trustee and beneficiary of a trust. * A trustee may be a beneficiary of the trust. * However, ***_the sole trustee CANNOT be the sole beneficiary._***

Answer 42

**A settlor is free to designate that the trust be governed by the laws of another jurisdiction.** Permitted so long as: 1. The settlor has a ***_SUFFICIENT CONNECTION_*** to that jurisdiction, either when the trust is created or during administration of the trust; AND 2. It is not ***_contrary***_ to a _***STRONG PUBLIC POLICY_*** in Florida.

Answer 43

1. ***_Relationship b/w transferor and transferee_***–is transferee someone to whom transferor would normally give an outright gift; 2. ***_Relationship between transferor and purported beneficiaries_***–are purported beneficiaries persons for whom a settlor would naturally provide; & 3. **Whether transferor gave *_sufficiently specific instructions***_ to the transferee to _***create a fidicurary relationship_***.

Answer 44

1. Successor trustee named in trust document; 2. Person *_unanimously appointed_* by the qualified beneficiaries; and 3. Person appointed by the court.

Answer 45

**360 year vesting period for trusts** trusts created on or before 12/31/00, the vesting period is 90 years * For purposes of applying the RAP, An interest in an *irrevocable* trust is deemed to be created: * Irrevocable: at time trust was created * Revocable: interest is created at time trust becomes irrevocable – generally at the settlor's death * A ***purely*** ***charitable*** trust is not subject to the RAP. * A trust that contains both charitable and noncharitable interests may be vulnerable to the RAP.

Answer 46

**NOT** Property may be added to the trust in the future, but that property will not be part of the trust until it's transferred into the trust.

Answer 47

1. A trust is not invalid if the trust res consists only of trustee’s right to receive death benefits (e.g., proceeds from a life insurance policy, an annuity). 2. A devise in a will is not invalid b/c the only res of the trust is the possible expectancy of receiving that devise. * Will contained a “pourover” provision to an otherwise unfunded trust (e.g.,a devise in a will to an existing trust that has no assets).

Answer 48

**undueinfluence,** **duress,** **fraud, or** **mistake** * if only part of trust is affected, then that part is void * challenge to validty of trust cannot occur until trust becomes irrevocable * An action to challenge the revocation of an entire trust can only be commenced after the settlor’s death * provision in a trust that would penalize a beneficiary for contesting the trust or instituting any actions related to the trust assets is unenforceable

Answer 49

1. Transferring property to another person as trustee - **trust created by transfer** 2. Settlor holds property as trustee - **a self-declared trust** * Ex: Can create a trust by stating that I hold my necklace in trust for my son 3. Exercise of a **power of appointment** in favor of a trustee

Answer 50

devisee: * person designated in will to receive a devise. * trustee of a testamentary trust is a devisee of a will. devise: * gift in a will of real or personal property * property is transferred to that trust as a devise under the settlor's will.

Answer 51

**will indicates that a devisee is supposed to use devise for benefit of another person but will does not indicate other intended beneficiary** * Ex: A will includes a provision that states "$200,000 to Bill - and Bill is to use the property as I had instructed him to do so." This is semi-secret because although testator intended a testamentary trust, he did not disclose an ascertainable beneficiary. * **The devise fails and reverts back to settlor**

Answer 52

**the will does not have any indication of a** **testator’s intent to create a trust** * Ex.: The will provides $200,000 to Bill without anything further. There's no indication that the testator intended to create a testamentary trust, although Bill might have promised the testator that he would use the money for someone else's benefit. * Devisee would get devise but the ***_intended beneficiary may sue to impose a constructive trust._*** * A will may be reformed to conform the terms to the ***_testator's intent is proven by clear and convincing evidence._***

Answer 53

**indefinite**

Answer 54

**not limited to beneficiaries like a private express trust** * settlor * state attorney * charitable organization named in trust * **NOT**: Particular members of the community who may benefit from the charitable trust, even those who directly benefit from the trust (e.g., four needy law students), may not bring an action to challenge a charitable trust.

Answer 55

1. Florida allows for the creation of a short-term trust referred to as a **21 year trust for non-charitable purposes.** * These trusts do not require definite beneficiaries. 2. **Trusts for the care of animals**–not limited to "pets"-animals that are alive at the creation of the trust may be included as beneficiaries of the trust. * Additional animals may be added to trust during settlor’s lifetime only * Trust terminates upon death of last surviving animal that is a beneficiary of the trust. * Excessive funds or funds remaining at the termination of the trust are distributed to settlor if the settlor is alive, or to settlor’s estate.

Answer 56

**arises when one person pays the purchase price for property but another person takes title to the property** * If person taking title to property has a close familial relationship to purchaser, i.e., spouse, parent, child, then **GIFT presumed person holding title.** * If there is no such relationship, then it is generally presumed that the person holding title is holding it for the benefit of the PURCHASER: presumed purchase money trusts [therefore, creditors may step in]

Answer 57

* Affects interests in a trust - but only in a **REVOCABLE** trust * Rule: If a settlor of a revocable trust and his spouse divorce or annul their marriage, any provisions in the trust in favor of the ex-spouse are **VOID** and ex-spouse treated as if she died at the time of the divorce or annulment. * **Florida law voids designations in favor of an ex-spouse in a life insurance policy, pay on death accounts, and other similar transfers.**

Answer 58

**Discretionary provision: When settlor gives trustee ability to make certain decisions regarding distributions in the trust** * Trustee’s discretion maybe limited by a standard–such as, health, education, and maintenance – often referred to as a *_support trust._* * A creditor – even a “special creditor” – cannot force distribution by the trustee nor attach a distribution. * The creditor will have to wait until distribution, if any, is actually made to the beneficiary.

Answer 59

**One settlor may only revoke the portion of the trust that the particular settlor contributed to the trust**

Answer 60

* Settlor or trustee's consent not required * Even if beneficiary is incompetent, minor child, or unborn, his consent is necessary * Guardian or guardian ad litem can agree on incompetent's behalf * If beneficiary's consent is not obtained, it might not be required if termination or modification ***_benefits_*** that beneficiary.

Answer 61

**includes a current beneficiary, intermediate beneficiary, or a first line remainderman living at the time his qualification is determined**

Answer 62

* The policy holder may create a trust and transfer ownership of the policy to the trust. * The policy holder may also retain ownership and name an existing trust or a testamentary trust as beneficiary of the policy proceeds.

Answer 63

* Florida authorizes creation of accounts under the UTMA. * The donor names a custodian who holds and manages the property for the minor. * The custodian is responsible for holding, investment, and spending the account assets for the minor beneficiary. * Must distribute the account assets to the minor upon termination

Answer 64

* A person, the principal, authorizes another person, the agent or attorney in fact, to act on behalf of the principal. * Agent has authority to act on behalf of the principal while the principal is alive, even if the principal becomes incapacitated.

Answer 65

1. Must be in **writing** and **signed** **by** **principal** & **2 witnesses.** 2. **Principal’s signature must be notarized.** 3. Must include the following or similar words: * “**This durable power of attorney is not terminated by the subsequent incapacity of the principal except as provided in Chapter 709, Florida Statutes**.” * Continues beyond principal’s subsequent incapacity

Answer 66

* If principal is adjudicated incapacitated (i.e., court finds principal to be incompetent) power ceases unless court determines it shall remain in force. * Editor's Note 2: For a nondurable power of attorney, the power of attorney generally terminates when the principal becomes incapacitated. However, for a durable power of attorney, the power of attorney does not terminate if the principal becomes incapacitated. * Power terminates when principal revokes power or when principal dies

Answer 67

**only powers expressly granted in PoA & authority reasonably necessary** to give effect to express grant of specific authority; authorized to act on from moment PoA executed * May include powers to: Exercise stock powers of the principal OR Convey or mortgage the principal’s homestead * These powers must be specifically enumerated in PoA (must be signed or initialed by principal): * Make certain gifts * Create an inter vivos trust * To amend, modify, revoke, or terminate a trust, but only if expressly authorized by both the trust and the PoA.

Answer 68

* without a will * with an invalid will * With a will that fails to dispose of all the decedent’s probate property

Answer 69

**Pretermitted** child receives an intestate share. * Exceptons: * child had received share as an ADVANCEMENT * parent’s will discloses an intent NOT to provide for the child; or * If testator had at least one other child at the time of execution of the will and the testator left SUBSTANTIALLY ALL HIS ESTATE PROPERTY to the other surviving parent of the pretermitted child. * **Exam Tip: If the will includes a devise to “all my children,” this is a class gift and, thus, for these purposes, children born or adopted after the will was executed are included in the will. Keep in mind that only those children who survive the decedent will be entitled to take from the decedent’s estate**

Answer 70

Lineal * Decedent’s descendants (such as children, grandchildren, great‐grandchildren, etc.) * Decedent’s ascendants (parents and grandparents) Collateral * Persons related to the decedent by a common parent or grandparent * Include siblings, nieces and nephews, aunts and uncles (related by blood, NOT marriage), and cousins

Answer 71

**Descendants of a deceased heir take person’s share by representation**; FL uses a strict per stirpes system of distribution * Estate is divided at generation nearest Decedent into as many shares as there are: * surviving members of that generation; and * deceased members of that generation who left surviving descendants. * Surviving descendants of each deceased heir take that heir's share.

Answer 72

SS takes entire estate

Answer 73

**SS takes 1/2 of the estate**

Answer 74

**SS takes 1/2 of the estate**

Answer 75

* Must be married to decedent at time of decedent’s death * Divorce or annulment extinguishes a spouse’s right to inherit from the decedent * Right to inherit remains even if the couple is separated or in the midst of divorce proceedings * Florida does NOT recognize common law marriages entered into after 1/1/68.

Answer 76

Florida applies the Uniform Simultaneously Death Act If decedent and beneficiary die simultaneously, decedent’s estate is distributed as if beneficiary ***_predeceased_* the decedent.** * Same rule applies for distribution of insurance proceeds to beneficiary * Also applies to property held as joint tenancy with right of survivorship or tenancy by entirety ‐ in effect, distributed as if a tenancy in common * Must survive by 1 Second to survive decedent; proven by a preponderance of the evidence

Answer 77

1 Second ## Footnote Survivorship must be proven by a ***_preponderance of the evidence_*** * Ex: Husband and Wife die in an accident. Their death certificates reflect the same time of death, as if they died simultaneously. If a witness from the accident scene testifies that Husband was dead but Wife had shown some signs of life, the witness's testimony could overcome the presumption of simultaneous death.

Answer 78

* **Scope of vision/line of vision standard:** each person must be capable of seeing the other. * **Conscious presence standard:** each party must be conscious of where the others were and what they were doing during will execution. **Florida has NOT established which standard applies.** * Exam Tip: Follow stricter scope‐of‐vision standard to ensure compliance with presence requirement. However, discuss both standards on exam.

Answer 79

* Sworn testimony that the execution of the will complied with the required formalities. * Requires notarized signatures of testator and witnesses * May be signed at the same time the will is executed OR any time after * NOT required for validity of will – establishes prima facie the formal execution and attestation of the will

Answer 80

surviving spouse is deemed to be a **pretermitted spouse** * Pretermitted spouse will receive intestate share. * Exceptions: * Surviving spouse may waive rights to pretermitted share in a valid pre‐ or post‐nuptial agreement * Surviving spouse will NOT receive pretermitted share if the spouse was provided for in the will in contemplation of marriage * Surviving spouse will NOT be treated as pretermitted spouse if decedent’s will expressly or impliedly discloses intent NOT to provide for the spouse.

Answer 81

A state--such as FLORIDA--that does not allow a will to be revived after a subsequent will revokes it. * Ex.: A testator who revoked Will #1 by an express provision in Will #2 cannot revive Will #1 by revoking Will #2.

Answer 82

1. Testator may **re‐execute** 1st will with the formalities required for will execution. 2. **Republication by Codicil:** Testator may execute a codicil which expressly refers to the first will – will effectively republish 3. **Dependent Relative Revocation (DRR)**: when testator revoked a will by physical acts causing testator to die intestate * Requires evidence testator would have preferred destroyed will rather than intestacy; AND testamentary scheme and that the decedent’s wills were substantially similar * Last valid will that was destroyed is treated as if NOT intentionally revoked * Generally applicable in two situations: * T validly executes Will #1, then Will #2. Both similar. 1. T immediately destroys Will #1 thinking that Will #2 is valid. 2. T immediately destroys Will #2 thinking that Will #1 will be revived.

Answer 83

Composed of all estate assets remaining after all other devises have been satisfied and all claims and costs have been paid

Answer 84

* If devisee is grandparent or descendant of grandparent, anti‐lapse applies to the class gift. * Devise is given to the devisee’s descendants, per stirpes. * Ex: Tammy Testator executes a will, devising $10,000 to her choral group. The group was made up of 4 friends and her cousin Cindy. If one of the friends predeceases Tammy, the remaining 3 friends and Cindy share the devise. By contrast, if Cindy predeceases Tammy, because Cindy is a descendant of Tammy’s grandparent, Cindy’s share will be distributed to Cindy’s descendants, if any, per stirpes, rather than to the remaining members of the choral group.

Answer 85

**reduction of an estate to pay claims against the estate, costs of administration, statutory shares, and other devises in will** * Order of abatement is a default rule (can be changed by testator). * Property abates in the following order: 1. intestate property 2. residuary devises 3. General devises 4. Specific and demonstrative devises * Estate will be distributed as follows: 1. Payment of debts, 2. Specific legatees, then 3. General legatees

Answer 86

If property has adeemed, a ***_specific devisee_*** has right to any remaining ***_specifically devised property_*** & following: * **balance of purchase price & security interest unpaid at testator’s death by purchaser of property;** * **amount of condemnation award for taking of property, unpaid at testator’s death;** * **proceeds unpaid from testator's death or casualty insurance on property; AND** * **Property owned by testator at death as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation.** * Ex: Terry Testator specifically devises a second home she owns to her sister, Sara. Before Terry dies, she sells the property to Pat. Pat, however, does not have enough funds to fully pay Terry. Terry agrees that Pat will pay Terry $1,000 a month until payment in full. Pat gives Terry a promissory note and a mortgage on the property as collateral. Terry dies without having received full payment from Pat. Terry no longer owned the second home, so the specific devise to Sara adeemed. However, pursuant to the non‐ademption statute, Sara is entitled to the remaining payments owed by Pat and the mortgage on the property.

Answer 87

**devise in a will is to be reduced by the value of an inter vivos gift from testator to beneficiary after execution of the will** * MUST be ***_written_*** * Devise is reduced only if: * Will provides for reduction; * Testator acknowledges his intent in contemporaneous writing; or * Devisee acknowledges in writing that he accepts gift in full or partial satisfaction of his devise. * Applies to ALL types of devises

Answer 88

* Florida also has a non‐ademption statute that applies to specific devises of securities. * Also addresses an increase in securities that benefits a specific devisee (accession) * Ex: Tony Testator executes a will with a specific devise of his 100 shares of Acme Corporation stock to Donna. Before Tony dies, Acme Corporation declares a 2 for 1 stock split – Acme’s actions convert each share of Tony’s stock to 2 shares. Therefore, Tony now owns 200 shares of Acme stock. Is Donna entitled to Tony’s 200 shares of Acme stock or will she only receive the 100 shares mentioned in Tony’s will? Because Tony specifically devised the shares to Donna, Donna gets the benefit of the stock split and receives the 200 shares under Florida’s securities accession rules.

Answer 89

**fair market value** minus claims, mortgages, liens, and security interests against the property

Answer 90

**Surviving spouse may waive the right to the elective share either before or after marriage by written contract, agreement, or waiver:** 1. Signed by the spouse; and 2. In the presence of 2 subscribing witnesses.

Answer 91

* Protects homeowner or homeowner’s family from a forced sale of the homestead property by certain creditors * Protects family from owner’s attempted transfers or disinheritance

Answer 92

* Applies to **real property**; May be held in fee simple or lesser estate * Covers only a **limited number of acres** * Within a municipality: **1/2 acre** * Outside a municipality: **160 acres** of contiguous land * Property must be **owned by a person** * Must be **primary residence of owner or family** * Homestead protection: * Within a municipality: limited to **only the house** * Outside a municipality: **extends not only to the residence but other buildings on the property** (garages, barns, stables, etc.)

Answer 93

1. TAXES and assessments on the homestead; 2. Debts for the purchase or improvement of the homestead (mortgage loans or construction loans); and 3. Contractor/mechanic liens.

Answer 94

* During lifetime – ***_unmarried owner_*** of homestead property may alienate the homestead by mortgage, sale, or gift. * ***_Married owner_*** – may not transfer (sell, mortgage, or gift) the homestead without the spouse’s joinder (consent). * Exception: Married owner may execute deed to add spouse as tenant by entirety.

Answer 95

* **Owner survived by *_minor_*:** homestead ***_CANNOT_*** be devised at owner’s death (EVEN IF THERE IS A SS) * **Owner NOT survived by a minor, BUT survived by spouse**: only valid devise of the homestead is to that spouse. * **Owner NOT survived by minor or spouse:** can devise homestead to whomever he wishes

Answer 96

**Owner is survived by spouse AND descendant(s):** * Surviving spouse gets life estate * Descendant(s) get a vested remainder. **If spouse gets life estate & descendant(s) get vested remainder, spouse CAN choose to take 1⁄2 as a tenant in common – other 1⁄2 will go to descendant(s) per stirpes.**

Answer 97

* Homestead * Forced sale of $1000 of personal property (In most states, homestead property is a real property concept. In Florida, personal property is also classified as “homestead” property to the extent that the total value of such property does not exceed $1,000. Fla. Const. Art. X, §4(a)(2).) * Exempt property: * Household furniture, furnishings, and appliances – up to $20,000; * Two cars in decedent’s name (not used in trade or business); * All college prepaid tuition plans; and * death benefits for a child that is a dependent of a teacher killed on duty. * Surviving spouse gets exempt property – if none, then decedent’s children. * Property will NOT be exempt if already specifically or demonstratively devised in will. * If specifically (or demonstratively) devised to the spouse or if specifically (or demonstratively) devised to owner's children if no spouse, the spouse or children could ask the court to declare it exempt from claims.

Answer 98

* Paid to surviving spouse and dependent lineal heirs (both descendants and ascendants) * Amount: cannot exceed $18,000 in total.

Answer 99

Spouse who enters a bigamous marriage is estopped from taking intestate share of first spouse’s estate

Answer 100

* NOT entitled to benefits * Spouse treated as having predeceased the decedent. * Spouse is not barred from obtaining spousal rights if: * Decedent *voluntarily cohabited with the spouse with full knowledge of the facts*; or * Spouses otherwise *ratified* the marriage.

Answer 101

* Beneficiary voluntarily gives up rights to estate * Beneficiary voluntarily gives up rights to estate. * Treated as having predeceased the decedent * Disclaimed property is distributed to other heirs by intestacy or to the next eligible taker under the will. * Anti-lapse statute might apply. * Cannot be used to avoid creditors or a federal tax lien

Answer 102

* **Initial burden is on the proponent of the will** * Generally the personal representative * Must prove formal execution and attestation * **Burden shifts to contestant** * Must prove why will should NOT be admitted to probate * ANY interested person can contest

Answer 103

* **Any person 18 y.o.+ OR emancipated minor** (marriage or court decree) who possesses *_sound mind_* may execute or revoke a will or codicil * **Time of execution** of a will or codicil: testator must **understand** *_nature and extent_* of his property; *_nature of objects*_ of his bounty (persons who would typically be expected to receive a part of the estate); AND _*effect of the disposition of his property_* as specified in his will or codicil * **Burden** is on person challenging the will * **Voids entire will**

Answer 104

An irrational or unfounded belief to which testator adheres against all evidence and reason * Exam Tip: Do not confuse lack of testamentary capacity with an insane delusion. Although similar evidence may prove both, a finding of lack of testamentary capacity voids an entire will; **a finding of insane delusion may void an entire will or only a portion of will.** * Ex: Tessa Testator had only one child, Diane. Tessa executed a will devising all her property to her niece, Nancy, rather than to Diane. Tessa insisted that Diane had not visited her in 5 years. In fact, Diane visited Tessa on a monthly basis. Although Tessa may have testamentary capacity, Diane could seek to void the will, asserting that Tessa suffered from an insane delusion that caused her to devise her property to Nancy rather than Diane.

Answer 105

**Acts that amount to persuasion or coercion to such a degree** **that Testator’s free will is destroyed** 1. Influence was exerted on testator; 2. Effect of influence was to overpower testator’s free will; and 3. Influence was but-for cause of will or provisions in the will. * voids entire will or provision

Answer 106

1. Procurer is a **substantial beneficiary under will;** 2. **Beneficiary in a confidential relationship** with testator; AND 3. **Beneficiary active in procuring the (provision) will**. * “**Substantial beneficiary**” – person who receives much more than she would have received in intestacy, under prior will, or more than others in same degree of relationship to testator. * “**Confidential relationship**” – any relationship in which testator places trust in another person. * Not mere familial relationships OR confidential relationship between spouses * “**Active procurement**” – court looks to factors including: * Beneficiary’s presence at time of execution; Beneficiary’s presence when testator expressed desire to make a will; Beneficiary’s recommendation of an anttorney to draft the will; Beneficiary’s knowledge of the contents of the will before execution; Beneficiary’s gave instructions to attorney on how to prepare the will; Beneficiary’s securing of the witnesses to the will; and Beneficiary’s safekeeping the will after execution. **Note3: A devise to a lawyer or a person related to the lawyer is VOID if the lawyer prepared the will, supervised the execution of the will, or solicited the devise, unless the lawyer or person related to the lawyer is also related to the testator.**

Answer 107

Threat of harm or coercion against Testator * Will executed under duress – (provision) will is voided.

Answer 108

* **Fraud in the execution:** someone purposefully switches or changes a document for the testator to sign without the testator’s knowledge. * **Will is voided.** * **Fraud in the inducement:** someone lies to the decedent so that the decedent will leave that person a devise. * **Might not be voided** * Remedy of a constructive trust or reformation of a will

Answer 109

**Unenforceable** in Florida ## Footnote **Clause in a will that attempts to disqualify anyone contesting the will from taking under it; aka in Terrorem Clauses**

Answer 110

* Mistake in the execution VOIDS a will. * Ex: Testator signed a will in which the pages were mistakenly switched with the spouse's will. * Mistake in inducement – testator executes will based on mistaken belief in fact. * Mistake in drafting (scrivener's error) – may lead to an ambiguity in a will. * **Latent** (not ascertainable from reading the will) or **patent** (obvious from the face of the will) * Court must determine ***testator’s intent*** in interpreting an ambiguity. * A will is generally NOT voided for mistake in inducement or scrivener’s error. * Court may reform a will to correct the mistake. * Reformation requires ***_clear and convincing_*** evidence of the testator’s intent.

Answer 111

**Person that administers decedent’s estate upon decedent’s death** * Must first pay creditor’s claims and debts of the estate * Required to publish a NOTICE TO CREDITORS in the newspaper * Must also serve a copy of the notice to all **known** and **reasonably ascertainable creditors**; creditors have **30 days after receipt of notice to file claims.** * Unknown creditors ‐ **3 months to place a claim**

Answer 112

**Testate:** * Appointment in will governs * If will is silent or person appointed is dead or does not want to serve: Majority in interest of devisees decide * Any devisee may petition to be personal representative **Intestate:** * Spouse * Majority in interest of heirs make decision * Heir in the nearest degree may be appointed

Answer 113

**Must be a legally competent Florida resident** * **Non‐residents, if:** Adoptive child or adoptive parent of decedent; Related by lineally consanguinity to the decedent; Spouse, brother, sister, uncle, aunt, nephew, niece, or related by lineal consanguinity to any such person; and Spouse of any of those persons. * **Entities** may serve as personal representative (e.g., trust company, bank, or savings and loan institution). * **CANNOT BE:** CONVICTED FELON, MINOR, OR Physically or mentally unable

Answer 114

**Administration of an estate in a jurisdiction** **other than where decedent is domiciled** * Florida resident has real estate in another state – ancillary administration is done in that state. * Resident of another state dies owning Florida real property – ancillary administration is proper in Florida. * Venue – where the property is located * Rules of inheritance and distribution are the rules of the domiciliary jurisdiction (rules where decedent resided). * Testator could provide otherwise in his will ‐ i.e., specify that Florida rules apply

Answer 115

* **Donor** creates power of appointment * **Donee** holds power of appointment * **Objects of the power:** eligible recipients * **Taker in default:** obtain property if the power of appointment is not exercised by donee

Answer 116

* **General** power of appointment: allows holder to appoint anyone as recipient (including herself, her estate, or creditors). * **Non-General** (special or limited) power of appointment: holder ***_cannot_*** appoint to herself, her estate, or creditors. * Power may be presently exercisable or only at the death of the donee (testamentary).

Answer 117

**Does NOT exercise a power held by Testator** * Florida requires: * specific reference to the power; OR * other indication of intent to include property that is the subject of the power.

Answer 118

**protected by receiving a share in Testator’s estate equal to what a surviving spouse would receive if Testator died intestate.** * Accordingly, the spouse would receive half the estate, or her intestate share, and the remainder would be distributed according to the terms of the will. * Although a spouse may waive her right to a pretermitted share, such waiver must be signed and witnessed.

Answer 119

**an alternate disposition** **residuary clause**

Answer 120

1. intestate property, 2. residuary devises, 3. general devises, excluding those that are demonstrative, and 4. demonstrative and specific devises.

Answer 121

* will specifically provides for the deduction of the gift; * testator declares in a writing contemporaneous with the gift that the gift should be deducted from the devise (or is in satisfaction of the devise); or * recipient of the gift acknowledges in writing that the gift is in satisfaction of the devise.

Answer 122

* Receipt of the gift OR * Death of the testator

Answer 123

**Inter vivos Trust:** Created duringa settlor’s lifetime **Testamentary Trust:** Created upon a settlor’s death; Created as part of the settlor/testator's will **Irrevocable Trust:** The settlor generally cannot revoke or amend the trust. **Revocable Trust:** Settlor retains right to revoke or amend trust. * **Florida: trust presumed revocable, unless Settlor expressly states otherwise in the trust document.**

Answer 124

**executor; party that administers the will; entrusted with responsibility for winding up someone's earthly affairs** * Age: must be 18 y.o.+ when executed * Mental Capacity * Of sound mind: at time will executed, must have ability to understand: * Nature, condition, & extent of his property; * Nature of the disposition that he is making of his property; & * Names of his relationship to the natural objects of his bounty [who are the people that a decedent usually leaves his estate to]

Answer 125

intestate share of estate, Unless testator did not plan to leave to anything for SS or non-probate gifts made in substitution for any gift in the will

Answer 126

1. Unless expressly limited to the perpetuities period, any special or testamentary power given to an unborn person is invalid. 2. If it is certain that a presently exercisable general power will become exercisable or fail within the perpetuities period, it is valid.