WIlls & Estates - Gretchen Flashcards
intestacy
no will; void will; partial will
per stirpes
by representation; survival or surviving descendants
spousal rights
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
spousal elective share
30% of assets in elective share
elective share assets exclusions
irrevocable transfers made before marriage of Oct. 1999, homestead property
kids in intestacy
take equally; if no kids, then goes to parents, then siblings, then grandparents (1/2 paternal, 1/2 maternal side), then grandparents’ descendents.
intestacy w/ no family
eschates to the state
1/2 siblings & non-blood siblings in intestacy
take 1/2 of blood kids; kid born in wedlock is presumed to be spouse’s
adopted kids in intestacy
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.
virtual adoption in intestacy
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
Uniform Simultaneous Death Act
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
advancements
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
specific devise
gift of particular property such as a car; satisfied only by BEN’s receipt of the particular item
demonstrative devise
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
general devise
satisfied from general assets
residuary estate
all estate assets remaining after all other devises have been satisfied and all claims and costs have been paid
incorporation by reference
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.
revocation of a will
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.
lapse- general rule
general rule is that if a devise predeceases the testator, or is treated as such, the gift fails
anti-lapse statute
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).
class gift rule
if devisee is grandparent or descendent of grandparent, the anti-lapse rule applies; the devise is given to devisee’s descendants per stirpes
devise lapses
cannot be saved by anti=lapse statute; if specific, demonstrative, or general devise, it becomes part of the residuary estate
residuary lapse
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
abatement
means reduction; if not enough estate to pay all the claims the default order is: intestate, residuary, general, specific, and demonstrative
ademption by extinction
applies only to specific devises; if devise is no longer part of the estate, then gift fails
FL non-ademption statute
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.
what is covered by homestead?
real property to an extent; personal property to an extent
what does homestead do?
protects real property from forced sale by creditors; exemptions: mortgage, taxes, lien for construction
what are the homestead exemptions?
taxes, mortgage, liens for construction
how much land can be homesteaded?
in a municipality: 1/2 acre, home only; outside a municipality: 160 continguous acres, house and other buildings on property
can you transfer a homestead?
yes, to spouse, children, or other heirs
restriction on alienation of homestead
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
can spouse waiver right to homestead?
yes-by pre- or post-nuptial agreement
how much personal property can be homesteaded?
FLC exempts up to $1,000 in personal property
statutory personal property exemption
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
family homestead allowance
maxes out at $18k; paid to surviving spouse and lineal heirs
bars to succession by will
homicide of decedent; spousal rights procured by fraud, duress, or undue influence; bigamous marriage stops rights of first spouse; disclaimer
homicide of decedent
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
if spousal rights procured by fraud, duress, or undue influence
spouse treated as having predeceased other spouse
spousal waiver of rights to will
spouse can disclaim; cannot be used to avoid creditors or federal tax lien; anti-lapse statute does not apply
will contests: burden of proof
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
testamentary capacity: execution or revocation
must be 18 or an emancipated minor and execute sound mind to execute or revoke a will
what is testamentary capacity?
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)
how is capacity determined
solely by testator’s mental state at the time of execution of the will
lack of capacity
voids the will
burden to prove capacity
testator is presumed to have capacity; burden is on the person challenging; all relevant evidence is considered
insane delusion
irrational or unfounded belief to which the testator adheres against all evidence and reason
undue influence in general
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
undue influence elements
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.
undue influence presumption
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).
undue influence burden
once presumption is raised, burden shifts back to proponent to disprove undue influence by a preponderance of the evidence
duress
threat of physical harm or coercion; entire will or provision is void
fraud in inducement
someone lies so decedent will leave that person a devise
fraud in execution
someone purposefully switches or changes a document for the testator to sign
mistake in execution
voids the will
mistake in inducement
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
mistake in drafting of will
court must determine the testator’s intent
no-contest will clauses
unenforceable in FL
Executor/personal representative in probate
administer’s estate
what does executor do?
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)
known or reasonably ascertainable creditors
must be served a copy by executor, then has 30 days to file a claim
unknown creditors
have 3 months to file a claim
testate estate administration
appointment in will governs; if will is silent, majority of BENs decide; and devisee may petition to be appointed
intestate estate administration
spouse takes preference; majority in interest of heirs makes decision; heir in nearest degree may be appointed
qualification of probate administration
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
ancillary administration of probate
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
appointment of probate administer definitions
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
types of appointment
general: allows holder (donee) to appoint anyone as recipient; non-general (special or limited): cannot appoint self, her estate, or creditors; testamentary: exercisable at death of donee
general residuary clause
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.
FL witness requirements
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
lapsing occurs when…
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
FL anti-lapse statute
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
lost or destroyed will & what happens
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
holographic wills
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.
advancement of property
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
advancement formula
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.
