Wills/estates Flashcards
If D has no survivng spouse/lineal descendants and no will, to whom does estate pass?
- Parents
- Siblings
When will property given to to heir be considered advancement on heir’s share of estate?
- 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
DRR
(Dependent Relative Revocation)
- 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
Types of devises
- Demonstrative - Identifies particular fund/asset as payment source (or if not possible, comes from general estate)
- Specific - property that can be distinguishd w/ reasonable accuracy from other property in estate
- General - personal property intended to be satisfied from general assets of estate
- Residual - estate that remains when all claims against estate and all devises satisified
Undue influence
- 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
Testamentary intent & capacity
Intent - T must have present intent at execution (will depend on facts)
Capacity - must be at least 18, sound mind at time of execution
Abatement (waterfall)
Property reduced in following order:
- intestate property
- residuary gift
- general gift
- specific and demonstrative gifts
Note: If they can be satisifed, demonstrative legacies = specific gifts. Otherwise, they’re general gifts
Rights of SS
- social security/pension plans
- homestead exemption
- personal property set asides
- family allowance (during probate)
- elective share
Probate in FL
Primary purpose is the orderly admin of D’s estate
- creditors
- contested titles
- T’s interest (i.e. fraud, undue influence)
- will contests
Powers of attorney
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
Reqs for valid will
- In writing (no holographic or oral wills)
- signed by testator (or proxy if 3P is present) at end of will
- 2 witnesses (must sign in each other’s presence - ok if T doesn’t sign in front of them)
- testmentary intent
Will substitutes
- joint tenancy (RTS)
- revocable trust - inter vivos transfer
- pour-over will - distributes property under trust, which must be executed concurrently/prior to will
Elective share
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
Ademption
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
Testamentary intent
Contestant must prove T lacked requisite mental capacity at execution
- nature of act (where)
- extent of property (what)
- natural objects of bounty (who)
- effect of disposition (how)
Attestation
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
Docs incorporated by reference into will
- Existed at time of execution
- intended by testator
- described w/ sufficient certainty in will
Personal Rep (requirements)
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
FL Anti-lapse Statute
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
Priority of payments (creditors/etc.)
Creditor must file claims before the later of
- 3 months after 1st publication or
- 30 days after service of notice from PR
- Costs/expenses of admin, PR comp, fees
- funeral expenses
- debts/taxes
- medical expenses from last 60 days before death
- family allowance
- court ordered child support
- debts from after death (thru business)
- all other claims
3 ways to revoke will
- 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
Half-blood rule
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
Can a copy of a will be probated?
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.
Caveats
- 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
Advancements
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)
Multiple personal reps
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
Pretermitted kids
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.
