WILLS - MC Rules Review

Question 1

In Florida, a will must be subscribed - signed at the END. If there is a dispositive (disposes of property) provision BELOW the testator’s signature, the ENTIRE WILL IS INVALID.

Answer 1

If there is a non-dispositive provision added after the signature, the will would be valid and admitted to probate, but the provision would be disregarded. Only the words present on the will at the time it was executed are part of the duly executed will.

Question 2

If a will beneficiary dies during the testator’s lifetime, the gift to that beneficiary lapses. However, under FL’s anti-lapse statute, if the B is a grandparent or descendant of a grandparent of T, and left descendent who survive the T, the gift is “saved” for those descendants.

Answer 2

SO - generally, goes to kids if parent beneficiary dies. Substituted for beneficiary.

Question 3

In Florida, a provision in a will purporting to penalize a person for contesting a will or instituting other proceedings relating to the estate ( a “no contest clause”) is UNENFORCEABLE.

Answer 3

Question is one for trier of fact. Other states do allow provision.

Question 4

Presence of Witnesses - 3 requirements

1. Testator must sign or acknowledge her previous signature in the witnesses’ presence (present at the same time)
2. the two(2) witnesses must sign in the testator’s presence, and
3. the witnesses must sign in each other’s presence.

Answer 4

The Testator need not actually sign in the W’s presence but he may acknowledge a previous signature. However, Ws need to sign together.

Question 5

In FL, there is no rule that a W signing a will has to be disinterested - can be a beneficiary. Does not make the Will invalid.

Answer 5

However, if there is a dispute on the will or questions about coverage or gifts, the Witness who signed who is now testifying as to the contents of the will has to be disinterested.

Question 6

Normally a testator has the right to name the person who shall administer her estate, the Court has no discretion but to issues letters testamentary to the person nominated in the will, unless the person is disqualified by statute.

Answer 6

REQUIREMENTS for QUALIFICATION -

1. 18 or older, 2. has mental capacity, 3. has never been convicted of a felony, and
2. is a resident of Florida.

Non-residents can serve if they are out of state grandparent or descendant of grandparent (relative) , an adopted child, spouse or person related by lineal consanguinity to the decedent’s spouse, or spouse of such persons. In laws are generally ok.

Question 7

Adminsitration Types:

1. a. Ancillary - for non-residents with Fl property
2. Full administration - over $75,000
3. Summary administration - under $75,000
4. No administration - personal property only whose value is less than value of exempt property

Answer 7

Ancillary adminstration is necessary when a non-resident dies leaving assets in FL.

Question 8

USDA - FL follows, which provides that when disposition of property depends on the order of death, and there is insufficient evidence that the persons have died other than sumultaneously, the property of each person is disposed of as if that person survivied.

UNELSS there is a contrary intention appears on the governing instrument, like a will containing a provision on simultaneous death

Answer 8

Will provisions would trump USDA, and if there is no will, estate would pass through intestacy

Question 9

The Doctrine of dependent relative revocation (DRR) is an equity type doctrine under which a court may disregard T’s revocation, if it determines that the act of revocation was premised on a mistake of law or fact, and would not have occurred but for the testator’s mistaken believe that another disposition of his property was valid.

Answer 9

If the other disposition is ineffective for some reason, the recovation accompaniytin ghte attempted disposition also fails and the will remains in force. Usually used by a court to give effect to the testator’s intent, for example, if T mistakenly believed that one of his beneficiaries had died and that person was really alive.

Question 10

Out of state wills will be enforced if they meet the signature and attestation requirements of the local jurisdiction where it was signed, PROVIDED it was not a holographic or oral will (never valid in FL)

Answer 10

Wills in a foreign language must be accompanied by an English translation for the court. But admissible to probate in FL if validly executed under the laws of the state or country where the Testator was at the time of the will’s execution.

*EXAM TIP* - read question and make sure T was not just ON VACATION in another jurisdiction, but really resided in FL

Question 11

Florida has a special short statute of limitations that applies to claims against a D’s estated. A creditor who was servied with a copy of the notice of administration must file its claims with the court before the LATER of
(i) 3 months after the date of the first publication of the notice of administration, OR (ii) 30 days after the date of the service of the notice. 3 month deadline.

Answer 11

Creditors - assume 90 days (later) deadline for filing claims, count dates.

Question 12

In Florida, extrinsic documents (not present at the time the will was executed) may be incorporated into the will by reference so that it is considered as a part of the will, Requirements: (i) the document mst be in existence at the time the will was executed, (ii) the will must sufficiently describe the writing to permit its identification, and (iii) the will must manifest an intent to incirporate the document.

Answer 12

Exception: A written list of tangible personal property - that CAN be allowed if (a) in writing signed by the testator, and (b) descirbing the items and the devisees with reasonable certaintly.

The writing may, but need NOT, be referred to as one in existence at the time of the T’s death, and may be prepared before or after the execution of the will, and can be altered by the testator after its initial preparation.

Question 13

Once an estate is completely administered, and the personal representative discharged, the administration will NOT be reopened upon discovery of a later will.

Answer 13

However, an administration may be reopened upon discovery of additional estate property.

Question 14

Joint or multiple personal representatives - need a majority to agree on all acts connected with administration of the estate unless the will provides another method. The rule does not apply if there is an emergency action required, or one personal representative has been designated to act on behalf of the others.

Answer 14

If a personal representative disagrees with a course of action of the other PRs, he must objet in writing to record his dissent at or before the time of the action. If dissent is properly recorded, PR cannot be held personally liable for the decision.

Negligent handling of estate property breaches the standard of care personal representatives are held to.

Question 15

The right to disclaim an interest in an estate is barred if any of the following occur before the disclaimer becomes effective: (i) the beneficiary accepts the proeprty or any of its benefits, (ii) the B voluntary assigns his interest , transfers it or encumbers it (with mortgage, for example) or the property is sold pursuant to judicial process, or (i) the beneficiary is INSOLVENT. Insolvent beneficiaries cannot disclaim so as not to defraud creditors.

Answer 15

Requirements for Disclaimer: (i) must be in a writing and identified as a disclaimer, (ii) describe the interest or power being disclaimed, (iii) be signed, witnessed and acknowledged, and (iv) be delivered. There is NO TIME LIMIT for disclaimer but as a practical matter should be done asap.

Question 16

If the D is survived by one or more children or more remote D’s who are not the D’s of the surviving spouse, the SS takes 50% of the estate and the remaining 50% passes to the D’s lineal descendants per stirpes.

Answer 16

In Florida, stirpital shares are alwyas divided a thte first generational level (usually child level) and grandkids take as representatives of a previously deceased parent.

Question 17

ORDER OF PAYMENT for CREDITORS and INSOLVENT ESTATES

1. Class 1: costs & expenses of administration and compensation of personal representatives and their attorneys, and attorney fees awarded against estate’
2. Class 2: Reasonable funeral, interment and grave market expense up to $6k
3. Class 3: Debts and taxes with preference uner federal law, medicaid claims and state costs
4. Class 4: reasonable and necessary medical and hospital expenses of the last SIXTY (60) days of the last illness of the decedent
5. Class 5: Family allowance
6. Class 6: arrearage from court ordered child support
7. Class 7: Debts acquired after death by the continuiation of the decedent’s business, to the value of the business assets, and
8. Class 8: all other claims

Answer 17

“All other claims” are subject to TIMING of filing by creditors - must file no later than 90 days from notice of administration. Even court orders/judgments previously issued.

Question 18

Divorce or Annulment following execution of a will revokes all gifts AND ADMINISTRATIVE APPOINTMNETS, in favor of the former spouse made by the will. FL applies the rule to revocable trusts, LIFE INSURANCE POLICIES< and any other interest in an asset that is to transfer to the spouse at death.

Answer 18

Designation of spouse as a beneficiary of a life insurance policy is revoked by law and the contigent beneficiary would take the proceeds, or defaults to estate residuary. Divorced spouse will not be administrator either.

Question 19

Once validly executed, a will may be revoked only by the methods prescribd by statute or permitted by case law. To revoke a will by physical act, the act must be done to an EXECUTED COPY Of the will. the descriction of an unexecuted copy has no effect.

Also, in Florida, a will cannot be PARTIALLY REVOKED by physical act - a cross out is disregarded . However, a CODICIL can be revoked by a physical act that acncels, defaces, or obliterates the codicil, or by executing a subsquent written instrument with the same formalities as required for the execution of the will. Needs to be fully cancelled, defaced or oblterated.

Revocation by physical act does not otherwise require subscribing witnesses.

Answer 19

A testator always has the right to revoke his will, if a will is found to be contractual, the second will is probated. however, there may be an action for breach of contract against the decednts estate and the remedy may be the imposition of a contrstucive trust upon the beneficiaries under the will.

An agreement to make a will or not to revoke a will must be in writing AND SIGNED BY THE AGREEING PARTY IN THE PRESENCE OF two wintesses.

DESTRUCTION by ANOTHER PERSON is ok provided the revocation is (a) at the testator’s direction and (b) in the testator’s presence

Question 20

under the doctrine of adepmption, when specifically bequeathed property is not in the T’s estate at death (destroyed, given away, sold previously), the bequest is adeemed and failes. Only applies to specific devises and bequests .

Answer 20

KEY ISSUE = Specific devise? A general legacy is a bequest of a dollar amount that is payable out of the general assets of the estate without a clam on any particular source of payment. A demonstrative legacy is a gift that specifies an asset as the source of funds (sale of stock, for example). A specific legacy is a gift of property that is particularly designated ans is to be satisied only by the receipt of the particular property described.

A bequest of securities is construed as general if possible, to avoid application of ademption. Depends on the use of the word MY - “My shares of AT&T stock” is a specific bequest subject to ademption but “from shares of GM stock” would not be a specific gift and no ademption, other assets could be paid.

Question 21

If there are kids, surviving spouse gets a life estate in the homestead with a vested remainder to the lineeal descendants in being at the time of T’s death. In lieu of a life estate, Spouse may elect to take an undivided one half interest in the homestead as a tentant in common, with the remaining undivided 50% interest in the kids.

Answer 21

NOTE - HOUSE has to be titled in T’s name alone to be considered homestead . Property held by spouses jointly with a right of survivorship does not qualify as homestead.

Pursuant to the Florida Constitution, in order to qualify for the homestead creditor exemption, three conditions must be satisfied: 1) acreage limitations, 2) residency requirements, and 3) ownership requirements.24 Provided all three of these conditions are satisfied, creditors of the person claiming the homestead creditor exemption will not be able to force sale of or place a lien on the homestead property.25 This article now examines how co-ownership of property affects the homestead creditor protection.

• Tenants by the Entirety — Only married couples can own property as tenants by the entirety,and there is a presumption that real property acquired during marriage is owned as suchThis form of ownership treats married couples as one unit — each spouse having an undivided interest in the property. Provided either spouse qualifies for the homestead creditor exemption, the property will be afforded protection from either spouse’s creditors.

Co-ownership of property will not prevent an owner from claiming the homestead creditor exemption; however, the status of each co-owner impacts the level of creditor protection retained by the property. When all co-owners qualify for the homestead creditor exemption, the home will be exempt from forced sale and liens.

Question 22

Elective Share: 30% of the elective estate, which is the probate estate plus certain non probate assets and will substitutes, revocable trusts, survivorship property.

Elective share is IN ADDITION to the spouse’s right to exempt property, family allowance and homestead.

Answer 22

Spouse does not need to be a FL resident to take an elective share. Prevents a surviving spouse from disinheritance. Can take statutory share of the estate INSTEAD of taking under the decedent’s will.

However, prenuptial agreement can change elective share - parties can agree to waive elective share or get another distirbution allocaiton.

Question 23

Collateral Kindred - Where property passess to collateral kindred of the intestate, if some of the kin are of half blood and some are of the whole blood, those of the half blood inherit only half as much as those of the whole blood.

Answer 23

Half-relatives get 50% share of what full blood gets

Question 24

Evidence that a will provision is the result of a mistake of fact or law always is admissible and if proven, will result in reformation of the will

Answer 24

Admissible even to resolve a patent ambiguity, on face of will.

Question 25

Extrinsic evidence is always admissible to show that a provision was mistakenly omitted from a will, or that a provision contained in the will is not what the testator intended.

Answer 25

IF the interested party proves by clear and convincing evidence that a will provision was mased on a mistake of fact or law, the court will reform the will to reflect the testator’s intent,even if the language if the will is unambiguous. Applies to missing pages and provisions, etc.

Question 26

Gift to a class - generally, absent a contrary provision in the will, if the will makes a gift to a class and one of the members dies in advance, the other class members get. HOWEVER< in Florida, the adnti-lapse statute allows any kids of the beneficiaries (Grandparent or descnedents of a grandparent of the testator) those descendents take

Answer 26

Anti- ademption statute trumps class gift rule

Question 27

Florida permits probate of a lost or destroyed will provided that a strict evidentiary test is met: the specific content of the will must be proved by the testimony of TWO disinterested witnesses, or if a correct copy is provided, ONE disinterested witness (carbon copy or photocopy ok)

Answer 27

A draft version of the will even if it has minor revisions will NOT count, need copy of signed final version.

Question 28

FL is one of the states that permit a will to be made self-proved at the time it is executed, if the T and attesting witnesses sign the will, then sign a sworn affidvait before a notary public reciting that the T declared to the W that the instrument was her will, and that the T and the W all signed in the presence of each other, present at the same time.

Answer 28

The Affidavit can be execited at any time subseuqent to the will’s execution if the T confirms his signature. Can also have affidavit attached by stapled page.

Question 29

If a person marries after executing a will and the Spouse survives the testator, the new spouse may taken an intestate sahre of the T’s estate as a pretermitted spouse. However, the FL statute does not operate in favor of the new spouse if T made a gift in the will to the spouse in contemplation of marriage.

Answer 29

IF the gift in the will was not made with Marriage in mind, the spouse will be entitited to intestate share. So gift to “friend” several years in advance of marriage would not be in contemplation of marriage.

Question 30

Ok to dispose of property by reference to acts and events that have some lifetime signficance other than providing for the testimentary gift - like a bequest to “my employees at tthe timte of my death” . It permits a testator to change the provisions of the will without having to execute a codicil.

Answer 30

The doctrine of acts of independent significance at common law permits a testator to effectively change the disposition of his property without changing a will, if acts or events changing the disposition have some significance beyond avoiding the requirements of the will.

Question 31

Life insurance is a non-probate asset and the beneficiary of the policy will take automatically,UNLESS it is a spouse and there has been a divorce, then the contingent beneficiary gets the policy proceeds.

Answer 31

Change of beneficiary only by complying with the terms of the policy for contract changes, cannot make changes via will.

Question 32

Prenup & Post nup agreements - The right of election of elective share can be waived in whole or in part by a written instrument signed by the waiving party in the presence of 2 subscribing witnesses. If the agreement contract or waive is executed AFTER marriage, full and fair disclosure of both parties of the estate is required BUT…

Answer 32

*EXAM TIP *

NO DISCLOSURE is required for an agreement BEFORE marriage - Applies only to Florida Probate code, NOT prenuptial agreements involved in divorce proceedings.

Question 33

Florida law provides that liens on specifically devised property are NOT exonerated unless the will directs the lien to be paid off from estate assets.

Answer 33

A general direction in the will calling for the payment of the decedent’s debts is not to be considered an expression of intent that liens be exonerated.

Question 34

“Insane Delusion” is a distinctive form of incapacity in which the T otherwise has testamentary capacity but spontaneously conceives as fact somthing that has no trhuth except in his imagination. FL recognized that if T possessed and insane delusion at the time the willw as eecuted , she lacked testamentary capacity.

A mere illogical belief is not enough.

Answer 34

Burden of proof shifts to the proponent only after the contestant introduces sufficient evidence which , if believed, would warrant a finding of mental incapacity. Not enough that the contestant merely brings forth a claim.

Question 35

An advancement is a gift made to the next of kin with the intent that the gift be applied against the donor’s estate. No gift is to be considered an advancement unless the intention to have it so treated is declared in a CONTEMPORANEOUS WRITING by the decedent, OR ACKNOLWEDGED IN WRITING as such by the heir. Has to be at the time.

Answer 35

The value of the advancement is determined as of the time the gift was made, not the gift’s value at the time of death. Added back into estate and then subtracted.

An advancement is NOT BINDING on a predeceased heir’s successors unless the writing or acknowledgement specifically provides otherwise. So kids can get unless T says they were bound by the advancement.

Question 36

In Florida, any 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 devise.. must be IN WRITING and SIGNED BY THE AGREEING PARTY in the presence of TWO WITNESSES.

Answer 36

EFFECT - Contractual agreement - if a second will is executed, both will be probated, and a constructive trust is imposed for the beneficiaries of the first (contractual ) will .

Question 37

Under Florida’s “slayer statute,” estate passes as if killer had predeceased T.

A final judgment of conviction of murder in any degree is conclusive for purposes of the statute. BUT even in the absence of a conviction, the court may determine by the greater weight of the evidence - a lesser standard than “beyond a reasonable doubt” that the killing was unlawful and intentional.

Answer 37

Statute does not bar the killer’s child from succeeding to property that otherwise would have passed to the killer.

Question 38

Under FL’s pretermitted child statute, if T fails to provide in his will for any child born or adopted after the will is executed, the child is entitled to a share of the estate equal in value to what would have been received if the T had died intestate.

Answer 38

However, the child does not take if the Omission is INTENTIONAL, OR if the T had one or more children when the will was executed and devised substantially all of the estate to the other parent of the omitted child.

Exam Tip: CHECK MOTHER’S status.