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Florida Bar **best > WIlls & Estates > Flashcards

WIlls & Estates Flashcards

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1
Q

spousal rights

A

only survives=takes all; spouse + kids belonging to both=spouse gets all; spouse + kid of dead spouse=1/2 each; spouse+kid of both+kid of live spouse= spouse 1/2, kid of both gets 1/2; dead spouse has prior kid+live spouse has prior kid=spouse gets 1/2; divorce: completed divorce or annulment negate spousal share in intestacy-must be married at time of spouse’s death

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2
Q

spousal elective share

A

30% of assets in elective share

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3
Q

elective share assets exclusions

A

irrevocable transfers made before marriage of Oct. 1999, homestead property

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4
Q

adopted kids in intestacy

A

treated as blood kids of adoptive parent; loses right to inherit from natural parent unless: 1-step-parents adopts kid; 2-widowed parent remarries & new spouse adopts kid; and 3-both parents die and a family member adopts.

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5
Q

virtual adoption in intestacy

A

kid must prove paternity to adopt from guy: 1-wedding ceremony, even if later voided; 2-paternity established in court; 3-father acknowledges paternity in writing

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6
Q

Uniform Simultaneous Death Act

A

if decedent and BEN die at the same time, Fl acts as though BEN died 1st–rule also applies to insurance and property held in joint tenancy or tenancy by the entirety; a person must survive the decedent by a second in time; proven by a preponderance of the evidence

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7
Q

advancements

A

acknowledged by testator or heir in writing; value is added to decedent’s estate, then division is made and share is subtracted from the advance-receiver’s share

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8
Q

specific devise

A

gift of particular property such as a car; satisfied only by BEN’s receipt of the particular item

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9
Q

demonstrative devise

A

fixed amount of money or property from a particular fund or sale of a particular item. If item or fund are no longer in estate, devise can be satisfied from general estate

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10
Q

general devise

A

satisfied from general assets

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11
Q

residuary estate

A

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

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12
Q

incorporation by reference

A

can incorporate another document by referring to it in a will, limited to disposition of tangible personal property by separate writing … cannot dispose by separate writing, a tangible personal property specifically devised in the will.

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13
Q

revocation of a will

A

requires present intent to revoke; does not require witnesses to revoke or an express revocation in a subsequent will; if terms in a subsequent will are in conflict with a prior will, the inconsistent terms of the prior will are revoked; if a person marries a testator after the execution of a will, the will is NOT automatically revoked and the new spouse automatically is entitled to a pretermitted share of the estate.

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14
Q

lapse- general rule

A

general rule is that if a devise predeceases the testator, or is treated as such, the gift fails

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15
Q

anti-lapse statute

A

applies to devisees that are testator’s grandparents, or a descendent of the grandparents; devise is distributed to the devisee’s descendent’s in per stirpes; unless the will shows contrary intent such as naming a substitute taker or including words of survivorship (to bacon, if bacon survives me).

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16
Q

class gift rule

A

if devisee is grandparent or descendent of grandparent, the anti-lapse rule applies; the devise is given to devisee’s descendants per stirpes

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17
Q

devise lapses

A

cannot be saved by anti=lapse statute; if specific, demonstrative, or general devise, it becomes part of the residuary estate

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18
Q

residuary lapse

A

residuary devisee predeceases or treated as having predeceased; if more than one residuary devisee, it goes to survivor; if residuary devisee is testator’s grandparent or descendent of grandparent, the anti-lapse rule applies; if residuary devise lapses, it will be distributed through intestacy

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19
Q

abatement

A

means reduction; if not enough estate to pay all the claims the default order is: intestate, residuary, general, specific, and demonstrative

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20
Q

ademption by extinction

A

applies only to specific devises; if devise is no longer part of the estate, then gift fails

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21
Q

FL non-ademption statute

A

specific devisee has a right to” any balance of purchase price and any security interest unpaid by a purchaser; condemnation award; proceeds paid from fire or casualty insurance; property owned by testator as a result of foreclosure, or obtained instead of foreclosure, of the security for the specifically devised obligation. If not addressed in the statute, can argue that testator had no intent in disinheriting the devisee and the specific devise is traceable to existing assets of the decedent.

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22
Q

what is covered by homestead?

A

real property to an extent; personal property to an extent

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23
Q

what does homestead do?

A

protects real property from forced sale by creditors; exemptions: mortgage, taxes, lien for construction

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24
Q

what are the homestead exemptions?

A

taxes, mortgage, liens for construction

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25
Q

how much land can be homesteaded?

A

in a municipality: 1/2 acre, home only; outside a municipality: 160 continguous acres, house and other buildings on property

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26
Q

can you transfer a homestead?

A

yes, to spouse, children, or other heirs

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27
Q

restriction on alienation of homestead

A

if owner has a minor child-cannot devise at all; if no minor child, but has a spouse-can only devise to the spouse; if owner attempts to devise, the surviving spouse gets a life estate, and the descendent gets a vested remainder

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28
Q

can spouse waiver right to homestead?

A

yes-by pre- or post-nuptial agreement

29
Q

how much personal property can be homesteaded?

A

FLC exempts up to $1,000 in personal property

30
Q

statutory personal property exemption

A

household furniture up to $20k, 2 cars, college prepaid plans, death benefits for a child of a teacher killed on duty; property is not protected if already specifically and demonstratively devised in a will

31
Q

family homestead allowance

A

maxes out at $18k; paid to surviving spouse and lineal heirs

32
Q

bars to succession by will

A

homicide of decedent; spousal rights procured by fraud, duress, or undue influence; bigamous marriage stops rights of first spouse; disclaimer

33
Q

homicide of decedent

A

bars succession; killer treated as having predeceased the decedent; final judgment of conviction is conclusive; if no charges brought, probate court can make its own determination; lesser standard of proof in probate court; killer’s descendants may still be able to take by per stripes or succession

34
Q

if spousal rights procured by fraud, duress, or undue influence

A

spouse treated as having predeceased other spouse

35
Q

spousal waiver of rights to will

A

spouse can disclaim; cannot be used to avoid creditors or federal tax lien; anti-lapse statute does not apply

36
Q

will contests: burden of proof

A

initially on the proponent of will who must prove formal execution and attestation; in a will contest the burden shifts to contestant who must prove why will should not be admitted to probate; any interested person can contest a will

37
Q

testamentary capacity: execution or revocation

A

must be 18 or an emancipated minor and execute sound mind to execute or revoke a will

38
Q

what is testamentary capacity?

A

must understand: nature and extent of property; natural objects of bounty (who typically gets something); and, disposition of his property as specified in will or codicil (who gets what)

39
Q

how is capacity determined

A

solely by testator’s mental state at the time of execution of the will

40
Q

lack of capacity

A

voids the will

41
Q

burden to prove capacity

A

testator is presumed to have capacity; burden is on the person challenging; all relevant evidence is considered

42
Q

insane delusion

A

irrational or unfounded belief to which the testator adheres against all evidence and reason

43
Q

undue influence in general

A

acts that persuade or coerce to such a degree that the testator’s free will is destroyed; decided on a case-by-case basis; usually proven through direct evidence

44
Q

undue influence elements

A

1-influence exerted; 2-effect was to overpower the testator’s free will; and 3-influence was “but for” cause of the will or provisions in the will.

45
Q

undue influence presumption

A

FL permits contestant to raise a presumption w/ 3 elements: 1-procurer is a substantial beneficiary under the will (receives more than normal); 2-BEN was in a confidential (trust other than spouse) relationship w/ testator; and 3-BEN was active in procuring the will or provision (presence at time of execution; recommendation of atty to draft will; knowledge of contents before execution; instructions to atty; securing of witnesses; safe keeping of will).

46
Q

undue influence burden

A

once presumption is raised, burden shifts back to proponent to disprove undue influence by a preponderance of the evidence

47
Q

duress

A

threat of physical harm or coercion; entire will or provision is void

48
Q

fraud in inducement

A

someone lies so decedent will leave that person a devise

49
Q

fraud in execution

A

someone purposefully switches or changes a document for the testator to sign

50
Q

mistake in execution

A

voids the will

51
Q

mistake in inducement

A

will based on mistaken belief in fact; not generally voided for inducement or scrivener’s error; reformation requires clear and convincing evidence of testator’s intent

52
Q

mistake in drafting of will

A

court must determine the testator’s intent

53
Q

what does executor do?

A

must 1st pay all creditors and debt of the estate; must publish notice to creditors in paper (must serve a copy to known and reasonably ascertainable creditors)

54
Q

known or reasonably ascertainable creditors

A

must be served a copy by executor, then has 30 days to file a claim

55
Q

unknown creditors

A

have 3 months to file a claim

56
Q

testate estate administration

A

appointment in will governs; if will is silent, majority of BENs decide; and devisee may petition to be appointed

57
Q

intestate estate administration

A

spouse takes preference; majority in interest of heirs makes decision; heir in nearest degree may be appointed

58
Q

qualification of probate administration

A

legally competent; FL resident; not a convicted felon; not mentally or physically unable. Non-resident can serve if: adopted child or parent; lineally or blood related; spouse, brother, sister, uncle, aunt, nephew, niece, or related by consanguinity; and spouse of those persons; entities may serve-such as a bank

59
Q

ancillary administration of probate

A

in jurisdiction outside of where decedent is domiciled: FL resident has real estate in another state-ancillary admin in that state; resident of another state with FL property-ancillary here; venue-where property is located; rules of inheritance and distribution are the rules of where the decedent resided

60
Q

appointment of probate administer definitions

A

donor: creates power of appointment; donee: hold power of appointment; objects of the power: eligible recipients; takers in default: obtain property if the power of appointment is not exercised by donee

61
Q

types of appointment

A

general: allows holder to appoint anyone as recipient; non-general (special or limited): cannot appoint self, her estate, or creditors; testamentary: exercisable at death of donee

62
Q

general residuary clause

A

does not exercise a power held by a testator. FL requires: 1-specific reference to the power or 2-other indication of intent to include property that is the subject of the power.

63
Q

FL witness requirements

A

must sign in presence of each other; not necessary to see other witness sign; no minimum age requirement; may be witnessed by an interested party-common law banning interested witnesses was abolished in FL

64
Q

lapsing occurs when…

A

a BEN dies before the testator, or before the end of a time required to survive. the gift then fails and goes to the residue estate if no other alternate BEN

65
Q

FL anti-lapse statute

A

unless there is contrary intent apparent, the gift will not fail. However, if the will specifically says that the person must survive the testator, the gift will fail, because it shows contrary intent

66
Q

lost or destroyed will & what happens

A

if the presumption of revocation has been overcome, FL allows probate of the will provided that a “correct copy” is provided and proved by one disinterested witness-a correct copy is a carbon or photocopy

67
Q

holographic wills

A

not valid in FL, even if valid in another state in which it was validly executed. FL requires all wills to be written, formal, and attested to by 2 attesting witnesses.

68
Q

advancement of property

A

property that a person gave during her lifetime to an heir will only be treated as an advancement if declared in a contemporaneous writing by the decedent, or acknowledged by the heir to be advanced

69
Q

advancement formula

A

requires a special formula called the hotchpot procedure: the advancement is added back into the estate, and the resulting estate is divided accordingly. The advancement is then deducted from the heir who received it.

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