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72 Cards in this Set

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What does florida follow for distribution?
Strict per stirpries (determine at the first generational level)
How much does a surviving spouse take if a descendant dies intestate?
1) 60k+ 1/2 remaining estate if survived by descendant and all remaining children are descendants of spouse
2) 1/2 if some are not descendants of decedent
3) all of the estate if there are no surviving descendants
What effect does divorce have in F?
1) Revokes all provisions favoring the ex-spouse, and construe the will as sheila had died
2) if remarry, doesn't matter
3) separation w/o property settlement, no effect
4) separation w/ property settlement, effect
5) no effect on life insurance policy
Intestate shares go in which
1) all to issue
2) if no issue, to parents or survivor
3) if no issue or parents, to parents issue (brothers and sisters of decedent
4) if none of the above, 1/2 to paternal grandparents and their issue and 1/2 to maternal grandparents and their issue

NO INHERITANCE BEYOND GRANDPARENTS OR ISSUE OF GRANDPARENTS
What about half bloods and florida?
Take half as much as whole bloods, except where all collateral kin are half bloods
What about dying at same time?
1) USDA applies
2) no 120 rule
3) treat as though if one had survived the other
How do disclaim in florida?
1) must be in writing identified as a disclaimer
2) describe the interest or power being disclaimed
3) signed, witnessed and acknowledged
4) delivered
5) real property must be recorded
When is a gift considered an advancement?
1) intention must be declared in a contemporaneous writing by the decedent or acknowledged in writing by the heir
2) not binding on predeceased heir
Requirements of Will in FL?
1) T must be over 18
2) In writing
3) Signed by the testator
4) at the end of the will
5) in the presence of two witnesses
6) who sign in testator's presence
7) and in the presence of eachother
What does at the end mean in FL?
Sign at the end means in a time sense, and not on the will itself
What about if add after execution?
Will is valid, but the addition is not
What about holographic wills?
1) depends on whether or not there were witnesses
2) If none, then no
3) if 2 witnesses, then yes
What test does FL apply for presence?
Must mention both
1) Scope of vision the testator - need line of sight
2) Conscious presence test - conscious of eachother and what they are doing
What is ancillary administration?
When there is property in Florida
Can an interested witness take under a FL will?
- Yes. In Florida, an Interested W may take under a will.
How to prove wills in FL?
1) Oath of any one attesting witness taken before circuit judge or court clerk
2) if cannot find them, may use PR
3) Self proved wills have attestatation clauses for all parties - formalities are conclusively presumed
4) not mental capacity, fraud, undue influence
SOL?
- When the administration of the will is complete.
How does the Testator accomplish Revocation of a Will by Physical Act in FL?
Revocation of a Will by Physical Act in FL:

1) Intent to revoke
2) Physical act (burned, torn, canceled, obliterated or destroyed)
3) An act on one copy revokes all copies
4) Physical act must to be on the LANGUAGE OF THE WILL
When is will presumed to be revoked?
1) In T's possession from time of execution until death and found in mutilated condition after T's death
2) Will last seen in T's possession and not found after T's death
When is revocation by a 3rd party sufficient?
1) must be done at T's direction
2) in T's presence
What is will was improperly destroyed?
Use FL's lost will statute
1) due execution by witnesses
2) contents must be proved clearly and distinctly by the testimony of 2 disinterested witnesses and a correct copy being equivalent to one of the witnesses
3) correct copy means xerox copy
What about inconsistent wills and codicils?
1) try to read them together
2) if inconsistent, later document prevails
What effect does revocation of a will have on codicils?
- In FL, the revocation of a will Revokes ALL codicils to will.
What effect does revocation of a codicil have on a will?
- A revocation of a codicil just revokes the codicil. (A revocation of a codicil to a will does NOT revoke the will itself, only that codicil that the Testator had the intent to revoke is revoked.)
What about subsequent writing on wills? (i.e., writing $15k over $10k)
No effect unless:
1) Re-executes will
2) Republishes will by codicil

-Just writing over words on a will does not revoke anything.
Once Will is revoked in FL, the only way to get it back is:
In FL, once a Will is Revoked, the Only way to get it back is either:
(1) Republish by codicil
(2) Re-Execute

(Must Republish or Reexecute in accordance with the Statute of Wills.)
What about Dependent Relative Revocation?
Can disregard a revocation which is based on:
1) But for mistake of fact or law,
2) never would have made the revocation
How to incorporate extrinsic document by reference?
1) writing must be existence when will was in executed
2) will must manifest an intent to incorporate the document
3) will must describe the writing sufficiently to permit its ID
What about leaving tangible personal property?
1) Only tangible personal property (not money or property in trade or business)
2) must be signed by T or in handwriting
3) describe the property with reasonable certainty
Devise house and its contents therein?
1) takes household furnishings and works of art
2) does not take stock certificates and passbooks found in dresser drawer
3) not car in garage, does not make the house a home
When does the Anti-Lapse statute apply in FL?
In FL, when will the Anit-Lapse statute apply?
1) When the predeceased beneficiary is T's grandparent, or a descendant thereof;
2) Who leaves issue...
The Anti-Lapse Statute will apply ---> Must go to the relatives.
What about class gifts?
1) Surviving members take
2) If gift was to somebody of t's descendants, then apply anti-lapse
What order do to gifts go to satisfy funeral expenses, admin and creditor's claims?
The order in which gifts will go to satisfy funeral expenses, admin. expenses, and creditor's claims is as follows:

1) Intestate property - partial intestacy
2) Residuary bequest
3) General legacy (10k to someone)
4) Demonstrative legacy (5k from proceeds of stock)
5) Specific devise (car to X)
If a SPECIFIC BEQUEST in a will has been sold (or T otherwise does not own it at the time of his death)? If a DEMONSTRATIVE LEGACY?

- What is the result?

What happens if gift in a will is not Probate property (i.e., Testator did not own the subject of a gift made in his will at the time of his death)?

If a gift in the will was a SPECIFIC BEQUEST ----> The gift is ADEEMED.


If a gift in the will was a DEMONSTRATIVE LEGACY ---- > FUND gift using another asset.
What if T becomes incompetent and guardian sells specific bequests?
What if T becomes incompetent and guardian sells specific bequests?

1) Right to cash value of specific bequest
2) Balance of purchase price owning from purchaser when contract is still executory at t's death
3) Condemnation award
4) Fire or casualty insurance proceeds unpaid at death
5) Property interest as a result of foreclosure on a note held
What about additional shares from corp?
What about additional shares from corp?

1) Get all additional or other securities of same entity owned by the testator because of action by the entity, excluding exercise of purchase options

2) Get merger, consolidation, regorganization ones too

3) "My" v. "200 shares of" problem:

(i) If will says "MY 200 shares of GM stock", then specific gift (=Adeemed);

(ii) If not specific (i.e., the will just says "200 shares of GM stock") then its
a demonstrative legacy (=NOT Adeemed).
What is property has a mortgage?
G/R: No right to have mortgage paid off.

1) Take with the mortgage, no right to encumbrance paid.
2) Must be specific language to remove debt on land.
3) If call is "subject to indebtnor."
When is extrinsic evidence admissible?
1) Extrinsic evidence will be admissible to try to clear up a Latent ambiguity (i.e., an abiguity not apparent on face);
2) If cannot clear up latent ambiguity, then gift fails
3) Court will not fill in the blank!
How to divide the shares?
1) Strict Per Stirpes
2) MUST HAVE AN ISSUE TO TAKE IF NOT ALIVE
For tax purposes when must you disclaim?
1) 9 months after decedents death
2) Minor must be 9 months after turning 21
What about insolvent disclaimers?
In FL you cannot disclaim. You must accept so that you can pay off your debt.
What about illegitimate children and intestate share?
What about illegitimate children and intestate share?

1) From mom = Always inhereit.
2) Inhereit only from dad if:
(a) Legitimized by marriage,
(b) Written acknowledgment of paternity, or
(c) Adjudication of paternity before or after death,
3) Vurtual adoption (i.e.,nunperformed adoption)
4) Even if adopted by step-parent, can inhereit from original family too.
What about simultaneous death act?
1) wills - as though testator survived, beneficiary predeceased
2) intestacy - as though intestate survived, heir predeceased
3) insurance - as though insured survived, as though beneficiary predeceased
4) joint tenancy - prevents operation of JT, 1/2 passes to each estate
Homestead Exempt Personal Property
1) spouse or minor children entitled to 20k of furniture AND automobiles uses family autos, unless specifically devised to someone else - pass free of creditor claims
2) up to 18k for surviving spouse or lineal heirs while assets in probate
3) this are not considered in elective share, intestate share or will
What if Will made before marriage?
Spouse is considered pretermitted - get intestate share
1) unless waived in prenuptual
2) provided for in will (in contemplation of marriage)
3) intent not to provide for spouse
Elective shares
1) must be domiciliary of FL
2) not automatic, must elect within 6 months
3) can be made on behalf of incompetent spouse
4) can be waived BEFORE marriage, with or without compensation, and only if fair disclosure AFTER marriage
5) 30% of elective share
What is an elective share?
1) entire estate subject to admin (including real property outside FL)
2) half of all property passing by right of survivorship
3) property in a revocable trust created by decedent
4) property in irrevocable trust if could give distributions to decedent
5) gifts in excess of 13k within 1 year before death
6) reduced by amount passing by will, right of survivorship, beneficiary of life insurance, of elective share trust (trust for spouse's benefit)
Who has standing to contest a will?
Anyone who's share of the estate would increase if the will contest were to be successful
What is the test for testamentary capacity?
1) did T understand the nature of the act he was doing
2) did T know the nature and character of his property?
3) did T know the natural objects of his bounty?
4) did T understand the disposition he wished to make?

COND
When do you need testamentary capacity?
At the time the will was made
What about insane delusion
1) if T otherwise sane, but the will or gift is a product of an insane delusion, having no basis in fact
Undue influence
1) existence and exertion of influence
2) overpower the mind and will of the testator
3) result is a will that would not have been executed except for the undue influence

ORE
When is there a presumption of influence?
1) principal beneficiary
2) stands in confidential relationship
3) draws or procures the execution of the will
What are the types of admin in florida?
1) no admin - no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills
2) Summary - estate less exempt property(20K + autos) is less than 75k
3) full admin is all other estates
Where do you commence admin?
County where the decedent resided at death
What is a caveat?
1) somebody who is worried about will being admitted to probate without knowledge
2) must give them notice(registered or cert mail) before admitting will to probate
3) creditors only need written notice
Who is elibigible to be PR?
1) persons over 18 not convicted of a felon or bank
2) if not resident of florida must be relative (or spouse of relative), or spouse
What about no will PR?
1) surviving spouse, then to person selected by majority of beneficiaries
What about PR in will?
1) first person nominated
2) person selected by majority
3) beneficiary selected by court
What MUST a PR do?
1) File a bond with the court
2) collect decedents assets, pay off any creditors and distribute the balance
When does a PR need court authority?
1) unless specified in will, to sell land or
2) continue operation of decedent's unincorporated business for more than 4 months
what about joint pr?
1) prior to 1987, need unanimous
2) after 1987, can be majority
How about notice to creditors?
1) Must publish notice to creditors for 2 consecutive weeks in an newspaper in the county where the estate is admin
2) PR must mail actual notice to all reasonably ascertainable creditors
Notice of admin?
1) notice of admin to decedent spouse and beneficiaries
2) notice on trustee of decedent's property
3) any person who might be able to exempt property
Inventory
1) must be done within 60 days of letters of admin
Creditors Claim Time Limits
1) no notice, have 2 years of decedents death
2) notice is published, shortened to 3 months from the first date of publication
3) unless entitled to actual notice(reasonably ascertained), have 30 days from the period of actual notice
Creditors Priority
1) expenses of admin (attys fees)
2) funeral expenses up to 6k
3) mediciad and debts and taxes with preference under federal law
4) reasonable and necessary medical expenses for last 60 days
5) family allowance
6) child support arrearages
7) post death expenses of continuing decedents business
8) all other
What about illegitimate children and intestate share?
What about illegitimate children and intestate share?

1) From MOM = ALWAYS inhereit.

2) Inhereit from DAD only if:
(a) Legitimized by MARRIAGE,
(b) Written ACKNOWLEDGEMENT of paternity, or
(c) ADJUDICATION of paternity before or after death,

3) Vurtual adoption (i.e.,non-performed adoption)

4) Even if adopted by step-parent, can inhereit from original family too.
What about Simultaneous Death Act?
Simultaneous Death Act:

1) Wills - Treat as though testator survived, beneficiary predeceased.

2) Intestacy - Treat as though intestate survived, heir predeceased

3) Insurance - Treat as though insured survived, as though beneficiary predeceased.

4) Joint Tenancy - SDA prevents operation of JT, 1/2 passes to each estate
What if Will made before marriage?
Spouse is considered a PRETERMITTED spouse and will get her INTESTATE SHARE unless:
1) S Waived in a valid prenuptual
2) Provided for in will (in contemplation of marriage)
3) T's intent was not to provide for spouse.
What is an Elective Share?

SS elective SHARE is 30% of the elective ESTATE - the elective estate consists of:
(a) The PROBATE Estate (including real prop decedent owned outside of FL); and (b) various NON-PROBATE assets such as:
1) Decds interest in PoD or sshp accts, or prop. held in JT w/ RoS or BTE
2) Prop. in a revocable trust (created by decedent)
3) Prop. in irrevocable trust (if decd retained rt to in. or prin.);
4) Net cash SV of the decedent's life insur. policy;
5) Death benefits from a pension;
6) Prop. transf. w/in 1 yr of death, or in satisf. of ES.
– Reduced by amount passing by will, RoS, B of LIP, or ES trust (trust for SS's benefit).= Amt of EE >> 30% of it is SS's ES.
SS Elective Share
1) Must be domiciliary of Florida;
2) Not automatic, MUST ELECT w/in 6 months of deceased spouse's death;
3) Estate can make election on behalf of incompetent SS;
4) ES can be waived BEFORE marriage (antenuptuial agrmnt), with or w/o consideration, full disclosure not required; and
5) ES can be waived AFTER marriage (postnumptial agrmnt) only if fair/full disclosure of assets made.
5) Spouses's elective share is 30%.