Wills/estates

Question 1

If D has no survivng spouse/lineal descendants and no will, to whom does estate pass?

Answer 1

1. Parents
2. Siblings

Question 2

When will property given to to heir be considered advancement on heir’s share of estate?

Answer 2

• D acknowledges in contemporaneous writing
• Heir acknoweldges in writing re: advancement

If heir predeceases D - unless specified in writing, doesn’t bind heir’s sucessors and property won’t be counted in intestate share of heir’s descendants

Question 3

DRR

(Dependent Relative Revocation)

Answer 3

• Equitable doctrine - goal is to avoid intestate succession and ensure distribution of proprety follows T’s intent
• Mistake of fact/law
• Court can disregard mistaken revocation –> revives prior will

Question 4

Types of devises

Answer 4

1. Demonstrative - Identifies particular fund/asset as payment source (or if not possible, comes from general estate)
2. Specific - property that can be distinguishd w/ reasonable accuracy from other property in estate
3. General - personal property intended to be satisfied from general assets of estate
4. Residual - estate that remains when all claims against estate and all devises satisified

Question 5

Undue influence

Answer 5

• Mental/physical coercion by 3P on T
• Must have intent to influence T so that he loses his own judgment
• Burden of proof is on contestor - must prove
  
  • effect of influecne was to overpower mind/free will of T
  • will would not have been executed by for the influence

General presumption - if beneficiary was w/ T at execution or suggested attorney, form of procuring will. Does not apply to husband and wife

Question 6

Testamentary intent & capacity

Answer 6

Intent - T must have present intent at execution (will depend on facts)

Capacity - must be at least 18, sound mind at time of execution

Question 7

Abatement (waterfall)

Answer 7

Property reduced in following order:

1. intestate property
2. residuary gift
3. general gift
4. specific and demonstrative gifts

Note: If they can be satisifed, demonstrative legacies = specific gifts. Otherwise, they’re general gifts

Question 8

Rights of SS

Answer 8

1. social security/pension plans
2. homestead exemption
3. personal property set asides
4. family allowance (during probate)
5. elective share

Question 9

Probate in FL

Answer 9

Primary purpose is the orderly admin of D’s estate

1. creditors
2. contested titles
3. T’s interest (i.e. fraud, undue influence)
4. will contests

Question 10

Powers of attorney

Answer 10

General:

• no conditions/restrictions
• donee can appoint himself or creditor as owner of property
• if donee fails to exercise POA, reverts to estate

Specific - donor specifies certain people as object of POA –> limits donee’s power

Question 11

Reqs for valid will

Answer 11

1. In writing (no holographic or oral wills)
2. signed by testator (or proxy if 3P is present) at end of will
3. 2 witnesses (must sign in each other’s presence - ok if T doesn’t sign in front of them)
4. testmentary intent

Question 12

Will substitutes

Answer 12

1. joint tenancy (RTS)
2. revocable trust - inter vivos transfer
3. pour-over will - distributes property under trust, which must be executed concurrently/prior to will

Question 13

Elective share

Answer 13

Purpose is to prevent SS from being cut out of will.

SS can elect to take 30% of elective estate. Must do so by earlier of 6 months after notice of admin or 2 years after T’s death

Elective estate -

• probate estate
• homestead
• concurrent accounts
• proprety subject to revoc/irrevoc transfers
• life insurance
• pension
• property transfers w/i 1 year

Question 14

Ademption

Answer 14

When specific devise no longer exists, intended B can take balance on purchase price or sale proceeds (if possible)

Court can consider T’s intent in causing property to go extinct

Ademption by satisfaction - T satisfies gift through inter vivos transfer. Requires

• intent
• will specifies deduction
• contemporaneous writing from T
• B acknowledges in writing

Question 15

Testamentary intent

Answer 15

Contestant must prove T lacked requisite mental capacity at execution

1. nature of act (where)
2. extent of property (what)
3. natural objects of bounty (who)
4. effect of disposition (how)

Question 16

Attestation

Answer 16

Will must be signed in presence of 2 witnesses

Presence means

• conscious presence - W’s signature must occur w/i range of T’s physical senses
• scope of vision (minority view) - T must be able to actually see signing

Competence of Ws - no min age - just needs to observe and comprehend act

Interested Ws (have direct financial interest in will) are okay

Question 17

Docs incorporated by reference into will

Answer 17

• Existed at time of execution
• intended by testator
• described w/ sufficient certainty in will

Question 18

Personal Rep (requirements)

Answer 18

Oversees winding up of D’s affairs. Can be reasonably compensated

Duties are:

• notice
• investory preservation
• fiduciary (L&C)

Must be/have:

• overr 18
• FL resident (unless close family specified in will)
• mental capacity
• no felonies

Can contest appt of PR but must do so w/i 3 months of receipt of notice of admin of estate

Question 19

FL Anti-lapse Statute

Answer 19

Common law: if B died prior to T, gift would go back into residuary gift

FLALS - prevents gifts from lapsing. Requires:

• B/ T have protected relationship (family member)
• B survived by issue
• Residuary lapses - if there are multiple devisees for residuary and one predeceases T, that portion goes to other devisee(s)
• Class gifts - if member’s gift lapses and FLALS not applicable, that portion goes to other class members

Question 20

Priority of payments (creditors/etc.)

Answer 20

Creditor must file claims before the later of

• 3 months after 1st publication or
• 30 days after service of notice from PR

1. Costs/expenses of admin, PR comp, fees
2. funeral expenses
3. debts/taxes
4. medical expenses from last 60 days before death
5. family allowance
6. court ordered child support
7. debts from after death (thru business)
8. all other claims

Question 21

3 ways to revoke will

Answer 21

• subsequent instrument
  
  • express - states it explicitly in 2nd will
  • implied - later writing inconsistent w/ will
• physical act - burning, tearing, etc. Must be intentional
• operation of law
  • divorce revokes all will provisions of spouse
  • subsequent marriage does not

Question 22

Half-blood rule

Answer 22

Special rule applying to only collateral kindred (i.e. not descendents). If intestate property descends to collateral kindred that include both half-blood and whole-blood, half-blood will take half what full-blood inherits

Question 23

Can a copy of a will be probated?

Answer 23

Yes. If orginal has been lost or destroyed and can’t be located at T’s death, and presumption of revocation is overcome, “correct copy” (carbon copy) can be probated if one disinterested W can testify to it.

Question 24

Caveats

Answer 24

• Provides notice of admin of an estate (testate or intestate) or admission of will to probate
• effective for 2 years
• any interested party can file
• if filer is non-resident of FL, must be signed by FL attorney or must appoint resident in filing county as agent
• creditors can’t file before D’s death, but anyone else can

Question 25

Advancements

Answer 25

need either contemporarneous writing by D or acknowledged by heir in writing.

if D predeceases heir, advanced property won’t be counted in intestate share by other heirs (unless writing says otherwise)

Question 26

Multiple personal reps

Answer 26

Majority of resp must concurr on all acts re: estate

If one disagrees, must notify the others in writing in order to not be liable at or before action

Question 27

Pretermitted kids

Answer 27

Kid born/adopted after execution of will

If T already has children and will devises all/most of estate to other parent of pretermitted kid, and other parent survives T, pretmiertted kid isn’t entitled to intestate share.