Wills - Not Complete

Question 1

A person dies interstate if he:

Answer 1

Has not executed a will
Has executed an invalid will
Has revoked a previous will without executing a new will

Question 2

If the decedent is survived by…

Spouse and no lineal descendants then…

Answer 2

Entire estate goes to spouse

Question 3

If the decedent is survived by…

Spouse and lineal descendants of spouse then…

Answer 3

Entire estate goes to spouse

Question 4

If the decedent is survived by…

Spouse and descendants not lineal descendants then…

Answer 4

Half remaining estate to spouse

Question 5

If the decedent is survived by…

Lineal descendants but no spouse then…

Answer 5

Equal shares to lineal descendants

Question 6

If the decedent is survived by…

Parents but no lineal descendants or spouse then…

Answer 6

Goes to parents

Question 7

If the decedent is survived by…

Siblings but no parents, lineal descendants, or spouse then…

Answer 7

Siblings take equal shares

Question 8

If the decedent is survived by…

No siblings, parents, lineal descendants, or spouse then…

Answer 8

State School Fund

Question 9

Scheme of distribution, Florida follows…

Answer 9

Strict per stirpes

Question 10

Adopted Children…

Answer 10

Will inherit from adoptive parents and vice versa but cannot adopt from natural parent. Step children and foster children do not inherit from step or foster parents.

Question 11

Exceptions to inheritance from adoptive parents…

Answer 11

(a) When the adoptive parent is married to the adopted child’s natural parent
(b) When the adoptive parent is married to the adopted child’s natural parent and the other natural parent of the child died prior to this marriage
(c) When adopted by a close family member (a sibling, grandparent, aunt, or uncle)

Question 12

A non-marital child and its natural father cannot inherit from each other UNLESS:

Answer 12

(1) If the natural parents marry before or after the birth of the child
(2) Adjudication of paternity before or after fathers death OR
(3) Acknowledgement of the father in writing

Question 13

Florida follows the traditional common law rule that: Half bloods sibling will take

Answer 13

Half as much as a whole-blood sibling.

Question 14

Advancements are…

Answer 14

Transfers to a potential beneficiary that occurs before
the intestate death of the decedent.

A transfer will be an advancement if:

(1) the delivery of the advanced property is accompanied by a writing that states that the gift is to be counted against the recipient heir’s intestate share of the intestate estate; or
(2) the heir acknowledges in writing that he is receiving an advancement, which is to be taken into account at the donor’s death.

Question 15

How is hotchpot calculated?

Answer 15

Under hotchpot, for computational purposes, the value of the advancement is added back in to the value of the decedent’s estate. The beneficiary’s intestate share of this hotchpot estate is then determined. The value of the advancement is then subtracted from the intestate share of the hotchpot estate, resulting in the actual intestate share.

Question 16

Uniform Simultaneous Death Act

Answer 16

If it is not possible to determine which of two persons died first, the property of each person will pass as if that person survived the other person.

Question 17

Florida Will Formalities:

Answer 17

a. First, the will must be in writing and signed at the end by the testator or another person, who subscribes the testator’s name at the direction of and in the presence of the testator.
b. Second, in the presence of at least two attesting witnesses, the testator must either sign the will or acknowledge he previously signed the will (or acknowledge that someone else had signed for him).
c. Third, in the presence of the testator and each other, the witnesses must sign the will.

Question 18

Challenging Testamentary Capacity

Will contestant must show that the will, or a portion thereof, was a product of:

Answer 18

Insane Delusion
Undue Influence
Fraud
Duress
Mistake
Tortious Interference with an expectancy

Question 19

Insane Delusion?

Rarely Successful

Answer 19

The testator persists in believing supposed facts that have no real existence except in his imagination and he conducts himself accordingly against all evidence and probability.

Question 20

Test for Undue Influence?

Answer 20

Whether such control was exercised over the mind of the testator so as to overcome his free agency and free will, and to substitute the will of another, so as to cause the testator to do what he would not otherwise have done but for that control.

Question 21

Presumption of Undue Influence?

Answer 21

(a) was a substantial beneficiary;
(b) had a confidential relationship with the testator; and
(c) was actively involved in procuring the will.

Question 22

Types of Fraud Challenges?

Answer 22

(1) Fraud in the factum occurs when a person fraudulently causes a testator to execute a will without knowing the nature of the document.
(2) Fraud in the inducement occurs when the testator knows that he is executing a will but has been fraudulently induced by a third person to include or exclude a provision in the will.

Question 23

Duress occurs when:

Answer 23

A person uses threat of physical harm or coercion to cause a testator to execute a will.

A will, or a portion thereof, is void

Question 24

Ways to revoke a will…

Answer 24

Writing
Physical Act
Operation of Law
Dependent Relative Revocation

Question 25

How to revoke a will in writing?

Answer 25

by making a subsequent writing that declares his intent to revoke his will and is executed with the requisite formalities for execution of a will

Question 26

Revocation by Operation of law?

Answer 26

Annulment, divorce, or dissolution of marriage revokes will provisions in respect to the former spouse of the testator Revocation by operation of law applies to life insurance policies, IRA’s, employee benefit plans, payable-ondeath accounts, transfer-on-death securities, and annuities.

Question 27

A presumption of revocation arises...

Answer 27

when a will that was in the testator’s possession prior to the testator’s death: a. is not found among the testator’s possessions after his death; or b. is found in a mutilated state after his death.

Question 28

Under the doctrine of dependent relative revocation...

Answer 28

A court may permit the probate of a will that was revoked if the revocation was dependent on the validity of a new will. Invoked when: (1) a testator executes a will; (2) the testator then revokes that will with the intent to make a new disposition as a substitute; and (3) the new disposition is not executed or is invalid

Question 29

The contents of a lost will may be proved by:

Answer 29

(1) the testimony of two disinterested witnesses who knew the terms of the will; or (2) presentation of a correct copy of the will and the testimony of one disinterested witness.

Question 30

To create a pour-over trust, the following elements must be satisfied:

Answer 30

(a) the trust must be established before, or concurrently with, the execution of the will; (b) the trust must be identified in the testator’s will; and (c) the trust terms must be set forth in a written instrument.

Question 31

To incorporate of a list disposing of tangible personal property, the testator must:

Answer 31

(1) Refer to the writing with sufficient specificity in the will; (2) Sign the writing; and (3) Describe the items and the bequests with reasonable certainty in the writing. * *Can be changed * *Doesnt need witnesses

Question 32

Incorporation by reference:

Answer 32

A will may dispose of property by reference to acts and events that have significance apart from their effect on the dispositions made by the will.

Question 33

When does a gift lapse (in general)?

Answer 33

If the beneficiary was not alive and if the beneficiary disclaims the gift.

Question 34

Florida's Anti-Lapse Statute Provides:

Answer 34

Unless the will provides otherwise, a deceased beneficiary’s gift will not lapse if the beneficiary is a grandparent or a lineal descendant of a grandparent of the testator (includes adopted children) If a gift does not lapse, it will pass strict per stirpes to the lineal descendants of the deceased beneficiary.

Question 35

Lapse within a class...

Answer 35

If a member of a class predeceases the testator, the other members of the class will absorb the share of the predeceased member unless the predeceased member is protected by the antilapse statute.

Question 36

Rule for Ademption by Extinction:

Answer 36

Property that is to be disposed of in a will is adeemed by extinction if it is no longer in the testator’s estate at the time of his death. A specific devise or bequest may be subject to ademption. A general legacy or a residuary devise is not subject to ademption because it is not paid from a specific source.