Wills (Grossman)

Question 1

Evidence as to Death

Answer 1

1) An authenticated copy of a death certificate issued by an official or agency of the place where the death purportedly occurred is prima facie evidence;

2) A copy of any record or report of a governmental agency that a person is alive, missing, detained or presumed dead is prima facie evidence; or

3) A person who is absent from the place of his last known domicile for a continuous period of 5 years and whose absence is not satisfactorily explained after diligent search and inquiry is presumed dead.

Question 2

When can a caveat be filed?

Answer 2

A caveat can be filed by any interested person who is apprehensive that an estate will be administered or that a will may be admitted to probate without that person’s knowledge.

-The caveat of the interested person, other than a creditor, may be filed before or after the death of the person for whom the estate will be, or is being, administered.

-THE CAVEAT OF A CREDITOR MAY BE FILED ONLY AFTER THE PERSON’S DEATH.

Question 3

Nonresident Caveator

Answer 3

If the caveator is a nonresident and is not represented by an attorney admitted to practice in FL who has signed the caveat, the caveator MUST designate some person residing in the county in which the caveat is filed as its agent for service.

However, if the caveator is represented by a FL attorney who has SIGNED the caveat, then no resident agent is necessary.

Question 4

Collateral Heir

Answer 4

Means an heir who is related to the decent through a common ancestor but who is not an ancestor or descendant of the decedent.

-Think: SIBLINGS

Question 5

Spouse’s share of intestate estate

Answer 5

1) If no surviving descendants of decedent = spouse takes entire estate

2) If surviving descendants are also descendants of surviving spouse = spouse takes entire estate

3) If there are 1+ descendants of decedent who are NOT lineal descendants of surviving spouse = spouse takes 1/2 of the estate

4) If there are 1+ descendants of decedent, all of whom are descendants of surviving spouse, and surviving spouse ALSO has 1+ descendants who are NOT descendants of the decedent = spouse gets 1/2 of the estate

Question 6

Strict Per Stirpes

Answer 6

This is the default rule for how the estate will be split up in FL.

Basically, the words “per stirpes” in a Will is a designation in which beneficiaries inherit the Testator’s estate by right of representation. Having per stirpes in your estate plan ensures that the share of your estate that belongs to your beneficiary will be divided among their descendants if he or she predeceases you.

Example: Mary has two children, and her Will states that she leaves her assets to all her children equally “or to their issue, per stirpes” if they do not survive Mary. It means that Mary’s assets will be divided between her children equally if they survive her.

But what if one of Mary’s children, John, dies sooner? John has three kids (Mary’s grandchildren), so his share of Mary’s estate will be split among his children because of the legal term “per stirpes” in Mary’s Will. Mary’s surviving child will still receive half of the assets as stated in the Will.

Question 7

Half Bloods

Answer 7

When property descends to the collateral kindred of the intestate and part of the collateral kindred are of the whole blood to the intestate and the other part are of half blood, those of half blood will inherit only HALF AS MUCH as those of the whole blood.

-But if all are of half blood, then they shall have whole parts.

Question 8

Afterborn Heirs

Answer 8

Heirs of the decedent CONCEIVED BEFORE his death, but BORN THEREAFTER, inherit intestate property as if they had been born in the decedent’s lifetime.

Question 9

Adopted Persons

Answer 9

For the purpose intestate succession by or from an adopted person, the adopted person is a descendant of the adopting parent and is one of the natural kindred of all members of the adopting parent’s family.

NOT a descendant of his natural parents or kindred of any member of his natural parent’s family, except that:

1) Adoption of a child by the spouse of a natural parent has NO EFFECT on the relationship between the child and the natural parent or the natural parent’s family;

2) Adoption of a child by a natural parent’s spouse who married the natural parent (i.e., a step-parent) after the death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent;

3) Adoption of a child by a close relative has no effect on the relationship between the child and the families of the deceased natural parents.

Question 10

Persons Born Out of Wedlock

Answer 10

A person born out of wedlock is a descendant of his or her mother and is one of the natural kindred of all members of the mother’s family.

The person is also a descendant of his or her father and is one of the natural kindred of all members of the father’s family, IF:

1) The natural parents participated in a MARRIAGE CEREMONY BEFORE OR AFTER THE BIRTH OF THE PERSON OUT OF WEDLOCK, even though the attempted marriage is void;

2) The paternity of the father is established by an adjudication before or after the death of the father; or

3) The paternity of the father is acknowledged IN WRITING by the father.

Question 11

Right to Elective Share

Answer 11

The surviving spouse of a person who dies domiciled in Florida has the right to a share of the elective estate of the decedent.

-The elective share is an amount equal to 30 PERCENT of the elective share estate.

-The elective share might be worth more than the intestate share.

Question 12

Time of Election for Elective Share

Answer 12

1) The election must be filed ON OR BEFORE the earlier of the date that is 6 MONTHS AFTER the date of service of a copy of the notice of administration on the surviving spouse (or an attorney or guardian of the property of the surviving spouse); OR

2) The date that is 2 years AFTER the date of the decedent’s death.

-Note: The notice of administration is the notice filed by the personal representative of the estate to notify creditors and heirs that the estate is being probated (tells them to come make their claims).

Question 13

Pretermitted Spouse

Answer 13

When a person marries AFTER making a will and the spouse survives the testator, the surviving spouse shall receive a share in the estate of the testator EQUAL IN VALUE to that which the surviving spouse WOULD HAVE RECEIVED if the testator had died INTESTATE (i.e., either 100% of the estate or half the estate if the decedent had children from another marriage), UNLESS:

1) Provision has been made for, or waived by, the spouse by prenuptial or postnuptial agreement;

2) The spouse is provided for in the will; or

3) The will discloses an intention NOT to make provision for the spouse.

Question 14

Pretermitted Children

Answer 14

When a testator omits to provide by will for any of his or her children born or adopted AFTER making the will and the child has not received a part of the testator’s property equivalent to a child’s part by way of advancement, the child shall RECEIVE A SHARE OF THE ESTATE EQUAL IN VALUE TO THAT WHICH THE CHILD WOULD HAVE RECEIVED IF THE TESTATOR HAD DIED INTESTATE, UNLESS:

1) it appears from the will that the omission was INTENTIONAL; or

2) the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the pretermitted child and that other parent survived the testator and is entitled to take under the will.

Question 15

Descent of Homestead

Answer 15

The homestead shall descend in the same manner as other intestate property;

BUT if the decedent is survived by a spouse and one or more descendants, the surviving spouse shall take a LIFE ESTATE in the homestead, with a VESTED REMAINDER to the descendants in being at the time of the decedent’s death per stirpes.

-OR, in lieu of the above, the surviving spouse may elect to take an UNDIVIDED 1/2 INTEREST in the homestead as a TENANT IN COMMON, with the remaining undivided 1/2 interest vesting in the decedent’s descendants in being at the time of the decedent’s death, per stirpes.

Question 16

Devise of Homestead

Answer 16

As provided by the FL Constitution, the homestead shall NOT be subject to devise if the owner is survived by a spouse or a minor child, except that:

the homestead may be devised to the owner’s spouse if there is no minor children.

Question 17

Exempt Property from Creditors

Answer 17

Exempt property shall consist of:

1) Household furnishings and appliances in the decedent’s usual place of abode up to $20,000;

2) Two motor vehicles (which do not have a gross vehicle weight of 15,000 pounds) held in decedent’s name and regularly used by decedent and/or his immediate family as their family vehicles;

3) All qualified tuition programs (i.e., Florida Prepaid).

Question 18

Family Allowance

Answer 18

If the decedent was domiciled in FL at the time of his death, the surviving spouse and the decedent’s lineal heirs that the decedent was supporting or was obligated to support are entitled to a REASONABLE ALLOWANCE IN MONEY OUT THE ESTATE FOR THEIR MAINTENANCE DURING ADMINISTRATION (up to $18,000).

-Gets paid to surviving spouse

-If no surviving spouse, gets paid to lineal descendants

-If surviving spouse but a lineal heir does not live with surviving spouse, the $18,000 gets broken up and apportioned as needed

Question 19

Who may make a will?

Answer 19

Any person who is of SOUND MIND and who is either 18 years old or an emancipated minor (i.e., 17 years old) may make a will.

Question 20

Execution of Wills: Formalities

Answer 20

1) Testator’s signature

–T must sign the will at the end; or
–T’s name must be subscribed at the end of the will by some other person in T’s presence and by T’s direction.

2) Witnesses - MUST BE IN THE PRESENCE OF AT LEAST 2 ATTESTING WITNESSES.

-(A) Must witness T’s signing OR

-(B) Acknowledgment
–That T has previously signed the will, or
–That another person has subscribed T’s name to it.

3) Witnesses’ Signatures - the attesting witnesses must sign the will IN THE PRESENCE OF THE TESTATOR and IN THE PRESENCE OF EACH OTHER.

Question 21

Do you have to have an 18 year old witness a will?

Answer 21

NO - a witness just has to be competent.

(can even be 16 or 17 years old)

Question 22

Can someone be a “witness” under the will even though they take under the will?

Answer 22

YES - this is allowed in FL.

Question 23

Wills executed by a nonresident

Answer 23

Any will, OTHER THAN A HOLOGRAPHIC OR NONCUPATIVE WILL, executed by a nonresident of FL is valid as a will in FL if valid under the laws of the state or country where the will was executed.

-A holographic will is a handwritten will with NO WITNESSES. (there’s nothing wrong with a handwritten will as long as there are 2 witnesses)

Question 24

What is a holographic will?

Answer 24

A holographic will is a handwritten will with NO WITNESSES.

Question 25

Execution of a codicil

Answer 25

A codicil shall be executed with the same formalities as a will.

-A codicil is a will (it’s just a supplement).

Question 26

Self-proof of Will

Answer 26

A will or codicil may be made self-proved at the time of its execution or at any subsequent date by the acknowledgment of it by the testator and the affidavits of the witnesses;

made before an officer authorized to administer oaths (i.e., a notary public); and

evidenced by the officer’s certificate attached to or following the will.

-Note: A will or codicil made self-proved under former law or executed in another state and made self-proved under the laws of that state, shall be considered as self-proved here.

-THIS ALLOWS YOU TO PROBATE THE WILL WITHOUT PRODUCING THE WITNESSES.

Question 27

Who may witness a will?

Answer 27

1) Any person competent to be a witness may act as a witness to a will.

2) A will or codicil, or any part of either, is NOT invalid because it is signed by an interested witness.

Question 28

Revocation by Writing

Answer 28

1) By a subsequent inconsistent will or codicil, even though the subsequent inconsistent will or codicil does not expressly revoke all previous wills or codicils, but the revocation extends only as far as the inconsistency.

2) By a subsequent will, codicil, or other writing executed with the same formalities required for the execution of wills declaring the revocation.

Question 29

Revocation by Act

Answer 29

A will or codicil may be revoked by the testator, OR SOME OTHER PERSON IN THE TESTATOR’S PRESENCE AND AT THE TESTATOR’S DIRECTION, by burning, tearing, canceling, defacing, obliterating, or destroying it WITH INTENT, and for the purpose, of revocation.

Question 30

Can you do a partial revocation by physical act?

Answer 30

NO - you either revoke all of the will or none of it.

If testator goes into the will and tries to revoke only one part of it, that will be INEFFECTIVE as a revocation, because you cannot partially revoke a will and the testator did NOT have the intent to revoke the whole will.

Question 31

Effect of Dissolution of Marriage

Answer 31

Any provision of a will executed by a married person that affects the spouse of that person shall become void upon the divorce of that person or upon the dissolution or annulment of the marriage.

After the dissolution, divorce or annulment, the will shall be administered and construed as if the former spouse DIED AT THE TIME OF THE DISSOLUTION, DIVORCE OR ANNULMENT OF THE MARRIAGE, unless the will or the dissolution or divorce judgment expressly provides otherwise.

Question 32

Revival by Revocation: Revocation of a will

Answer 32

The revocation by the testator of a will that revokes a former will shall NOT revive the former will.

Question 33

Revival by Revocation: Revocation of a Codicil

Answer 33

The revocation of a codicil to a will does NOT revoke the will, and, in the absence of evidence to the contrary, it shall be presumed that in revoking the codicil the testator intended to REINSTATE the provisions of a will or codicil that were changed or revoked by the revoked codicil, AS IF THE CODICIL HAD NEVER BEEN EXECUTED.

Question 34

Revocation of a Codicil

Answer 34

The revocation of a will revokes all codicils to that will.

The revocation of a codicil does NOT revoke the will.

Question 35

Republication of Wills by Codicil

Answer 35

The execution of a codicil referring to a previous will has the effect of republishing the will as modified by the codicil.

Question 36

Republication of a Will by Reexecution

Answer 36

If a will has been revoked or if it is invalid for any other reason, it may be republished and made valid by its re-execution or the execution of a codicil republishing it with the formalities required by this law for the execution of wills.

Question 37

Incorporation by Reference

Answer 37

A writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification.

Question 38

Separate Writing Identifying Devises of Tangible Personal Property

Answer 38

A written statement or list referred to in the decedent’s will which may dispose of items of TANGIBLE PERSONAL PROPERTY .

The writing must be signed by the testator and must describe the items and the devisees with REASONABLE CERTAINTY.

-The writing may be prepared before or after the will.

-It may be altered by the testator after its preparation.

Question 39

Effect of Fraud, Duress, Mistake and Undue Influence

Answer 39

A will is void if the execution is procured by fraud, duress, mistake or undue influence.

Any part of the will is void if so procured, but the remainder of the will not so procured shall BE VALID if it’s not invalid for other reasons.

-If the revocation of a will, or any part thereof, is procured by fraud, duress, mistake or undue influence, such revocation is void.

Question 40

Do you need to have capacity to revoke a will?

Answer 40

YES - a person must be of sound mind when they are revoking a will.

Question 41

Penalty clause for contest

Answer 41

A provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is UNENFORCEABLE.

-People are always allowed to contest a will in FL.

Question 42

Will Contests

Answer 42

An action to contest the validity of all or part of the will or the revocation of all or part of a will may NOT be commenced before the death of the testator.

Question 43

Simultaneous Death Act

Answer 43

Unless a contrary intention appears in the will:

1) When title to property or its devolution depends on priority of death and there is INSUFFICIENT EVIDENCE that the persons have died otherwise than simultaneously, the property of each person shall be disposed of as if that person survived (i.e., treat the spouses as if they predeceased each other - husband’s property goes to his heirs and wife’s property goes to her heirs)

2) If there’s any evidence that one spouse survives the other (even by mere minutes) then the property shall be devised to the surviving spouse and his heirs.

Question 44

Antilapse Statute

Answer 44

Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator:

1) is dead at the time of the execution of the will;

2) fails to survive the testator; or

3) is required by the will or by operation of law to be treated as having predeceased the testator;

then a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.

-E.g., if I devise my car to my brother, and my brother predeceases me, then my car will get passed down to my brother’s lineal descendants.

Question 45

Devises to Multigeneration Classes

Answer 45

Unless the will provides otherwise, all devises to descendants, issue and other multigenerational classes shall be per stirpes.

-E.g., if grandparent devises a gift to all 8 of his grandchildren, and 1 of them predeceases grandparent, then the gift shall still be split up 8 ways (the portion of the gift devised to the predeceased grandchild shall drop down to his lineal descendants)

Question 46

Reformation to Correct Mistakes in Wills

Answer 46

Upon application of any interested person, the court MAY reform the terms of a will, EVEN IF UNAMBIGUOUS, to conform the terms to the testator’s intent, if it is proved by CLEAR AND CONVINCING EVIDENCE.

-In determining the testator’s intent, the court may consider evidence relevant to the testator’s intent even though the evidence contradicts an apparent plain meaning of the will.

Question 47

Agreements concerning succession

Answer 47

No agreement to make a will, to give a devise, not to revoke a will, not to revoke a devise, not to make a will, or not make a devise shall be binding or enforceable UNLESS:

1) the agreement is in writing;

2) is signed by the agreeing party; and

3) in the presence of two attesting witnesses.

Question 48

Establishment and Probate of a Lost or Destroyed Will

Answer 48

Any interested person may establish the full and precise terms of a lost of destroyed will and offer the will for probate.

The specific content of the will must be proved by the testimony of TWO DISINTERESTED WITNESSES; OR

If a correct copy is provided, it shall be proved by ONE DISINTERESTED WITNESS.

-REMEMBER: Otherwise, there’s a presumption for a lost or destroyed will that it has been revoked.

Question 49

Creditor’s Right to Make a Claim

Answer 49

Creditors have either:

90 days to make a claim (if received notice by newspaper)

or

30 days if received notice directly.

Question 50

Summary Administration

Answer 50

Allowed if the value of decedent’s probate estate is less than $75K or decedent has been dead for more than 2 years.

–Watch out for things that should not be included as part of the value of the probate estate.