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118 Cards in this Set
- Front
- Back
Statutory Requirements for a valid Will)
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(1) T of sound mind, and 18+ or emancipated
(2) will must be in writing (3) T must sign will (liberal rule) (4) at the end of the will (in time) (5) in the presence of two witnesses (conscious presence) (7) who sign in T's presence (8) and in the presence of each other |
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Must T always sign in the presence of the witnesses?
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NO, T can also acknowledge his signature in their presence later when they sign it
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Is there a publication requirement?
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NO, witnesses do not need to know the document is a will (obviously, T does)
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Does the order of signing matter?
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order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction
(although, normally T signs and then the witnesses) |
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What is a holographic will and how are they handled?
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handwritten wills
SOME: holographic wills are allowed and would be entitled to probate IF in T's own handwriting and signed by T (requirement relaxed when will isn't typed) FLORIDA and MOST: do NOT recognize/give no "break" to handwritten wills (still need 2 witnesses to be valid) |
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Is a handwritten will ever valid in FL?
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YES, if also signed by two witnesses
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Discuss the presence requirement as applied to witnesses
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MINORITY:
"scope of vision" test = in presence = could see eachother sign if they were to look MAJORITY: "conscious presence" test - in presence = conscious of where eachother are and what eachother is doing FLORIDA: no case saying which view to adopt (to know both sides) |
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What happens if T is domiciled in another country, executes a will in another language and valid in that country, but not valid in Florida...T then dies, owning property in Florida?
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PROBATE:
Primary Administration: domicile at death Anxillary Administration: each place where property is owned LANGUAGE: FL court must receive a translated version along with the original LAW: will must have met the law of decedent's domicile at the time of execution (Note: can NOT be an unattested holographic will though) |
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What happens with an interested witness' signature?
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a will or any provision thereof is NOT invalid because the will is signed by an interested witness
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Proof of Wills - Generally
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oath of any one attesting witness taken before circuit judge or court clerk
it witnesses cannot be located or are incompeten, oath of PR that he believes the writing to be the decedent's last will |
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Self-Proved Wills - Generally
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at time will is signed by T and attesting witnesses (or some time thereafter, in T's lifetime), T and witnesses sign self-proving affidavit under oath before notary public
Affidavit recites all elements of due execution Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) CONCLUSIVELY PRESUMED Note: other issues are still open, but nobody can contest for want of formalities of execution Note: witness' signature on the self-proving affidavit can be used to satisfy the "signed by two witnesses" requirement |
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Statute of Limitations - Generally
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once administration of an estate is completed, everything is final
Thus, a later discovered will cannot be admitted to probate (once closed, cannot reopen) |
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Revocation - What is the best way to revoke a will?
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write it down, sign it with 2 witnesses
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Revocation - Physical Act
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revocation by physical act requires:
(1) intent to revoke AND (2) physical act Physical Act: refers to "burned, torn, canceled, obliterated, or destroyed" |
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Revocation - Sufficiency of Physical Act
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an act of revocation on on executed copy revokes all executed copies (cancelled)
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Is drawing lines and writing void on each sheet enough to revoke?
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YES, but just drawing the lines on each sheet with the intent to revoke is enough too
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Is writing void on the back of the will enough to revoke?
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NO, must cross some of the language of the will (line through signatures, words, etc)
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Is writing void across each page of a copy of the will enough to revoke?
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NO, must do so on the original will itself, not a copy
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Revocation - Presumption if...
will in T's possession from tine of execution until death and found in mutilated condition after T's death |
Presumption --- T did mutilating with intent to revoke (will is presumptively revoked)
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Revocation - Presumption if...
Will last seen in T's possession and control, but not found after T's death. |
Reason it can't be found is that T destroyed with intent to revoke. (will is presumptively revoked)
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Revocation by a Physical Act of a Third Party (by proxy)
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revocation by another person must be:
(1) done at T's direction AND (2) in T's presence |
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How can you probate a will that has been destroyed?
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by satisfying "lost wills" statute:
(1) due execution must be proved by testimony of attesting witnesses (2) contents must be clearly and distinctly proved by the testimony of at least 2 disinterested witnesses, a correct copy being the equivalent of one witness Note: it doesnt have to be the same witnesses that signed the will |
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What is a "correct copy"?
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a carbon or xerox copy, not a typewritten draft from which only a few minor changes had been made
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Are attorneys liable for wills?
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attorneys can be sued under negligence (tort liability) for improper wills
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Revocation by Inconsistency (with a codicil)
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where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together
BUT, to the extent of any inconsistent provisions, the later documents controls and thereby revokes by inconsistency the prior will |
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Requirements of a Codicil
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must be executed in the same manner as the will in order to be valid
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Effect of Revocation of a Will
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also revokes all codicils thereto
BUT, revocation of a codicil to a will does not automatically revoke the will instead, in the absence of contrary intent, it is presumed that testator intended his will as originally executed |
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Impact of Divorce on Will
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divorce or annulment following a will revokes ALL provisions in favor of the ex-spouse
construe the will as if the ex-spouse were dead |
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Impact of Divorce and then Re-marriage to the Ex on a will?
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once divorced, they are out...subsequent remarriage does not put them back in
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Impact of Separation on Will (no divorce)
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mere separation does NOT change a will
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Impact of Separation Accompanied by Complete Property Settlement
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settlement agreement is a waiver of interests within the will
construe the will as if the other were dead |
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What can the ex-spouse take as a beneficiary of T?
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NOT a revocable inter vivos trust (divorce also affects the revocable trust)
YES to a life insurance policy (divorce does not affect) |
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Once a will is typed, can T strike through a portion and handwrite something else before signing?
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the change will NOT be given effect UNLESS:
(1) after the change, T re-executes the will (sign it with 2 witnesses) OR (2) T re-publishes the will be codicil (change on will, write out intent on separate paper stating intent to change, sign that with 2 witnesses) original will - not revoked --- FL: no partial revocation by physical act (only in its entirity...if intent is for partial revocation, then not revoked unless expressly done) BOTTOM LINE: line with change next to it shows partial revocation intent, but nothing is revoked |
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if one will is executed, then another is executed later stating it revokes all prior wills...and the second will is ripped up to revoke it, what effect?
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1st will: revoked upon execution of 2nd will stating intent to revoke all previous wills
2nd will: revoked by physical act (destroyed with intent to revoke) Revival -- revocation of 2nd will does NOT revive the 1st one...the only way to revive is to re-execute or re-publish it by codicil, so T dies intestate |
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Depedent Relative Revocation - Generally
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allows us to disregard a revocation which is based on, induced by, premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation
DRR will give you the next best thing to what T really wanted STEPS: (1) disregard a revoation (the destruction of 2nd will) (2) because it was based on a mistake of law (that 1st one would be revived) (3) provided the court thinks T would not have revoked 2nd will but for mistake |
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Incorporation by Reference of an extrinsic document-
► Requirements |
(1) extrinsic document MUST BE IN EXISTENCE at time will was executed
(2) will must MANIFEST INTENT to incorporate the document (3) will must "describe the writing sufficiently to permit its identification" |
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Incorporation by Reference -
► Exception to "must be in existence" requirement, and 3 requirements for incorporation to be valid |
List Disposing of Tangible Personal Property
Must: ► dispose of tangible personal property that is not otherwise in will and not used in trade/business ► signed by T ► describe items well ► may be written before or after will is executed, ► may be altered at any time ► if more than 1 version found, newest version controls where 2 versions contradict |
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Acts of Independent Significance Doctrine
4 Situations |
will may dispose of property by reference to acts and events having an independent significance apart from impact on property disposition.
► ID of Beneficiaries - "my employees at time of death" ► ID of property - "my house and its contents" ► Pour over of probate assets into Inter Vivos trust amended after will is executed ► Acts of another person - "remainder to charity indicated in my brother's will (OK even if not yet written)" |
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What if a will devises "my home and its contents"?
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household furnishings and works of act OK
stock certificates within NOT OK car in the garage NOT OK (only those things that make a house a home are considered contents) |
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Basic Lapse Rule
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(1) when a beneficiary named in the will or trust dies before the testator, the gift lapses and becomes PART OF RESIDUE, UNLESS SUBSTITUTE TAKERS ARE PROVIDED by state's anti-lapse statute.
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Anti-lapse statute:
► requirements ► When not applicable? |
►FL anti-lapse applies when the dead (or dead by law) beneficiary is T's grandparent OR LINEAL DESCENDENT OF THE GRANDPARENT
► Property goes to substitute taker under statute, NOT to predecedent's estate ► Anti-Lapse Statute does not apply if contrary to a provision in the will ► provision that says "$$$ to PD IF he survives me" --- is an explicit requirement: anti-lapse statute no longer applies, gift fails the will's terms, and is added to the residue |
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Class Gift Rule
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when there is a gift by will to a class of persons generically described (the children of my friend X), and some class member predeceases the testator, and the lapse statute does not apply, the surviving class members take
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What happens when the residuary estate is devised to more than 1 person and 1 of them dies first?
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► FL/Majority: Anti-lapse statute is applied if applicable. If anti-lapse statute is not applicable to PD, then the surviving residuary-beneficiaries take in proportion to their interests in the residue
► Minority: no residue of a residue, therefore falls out of the will and passes by intestacy rules |
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SPECIFIC DEVICE/BEQUEST
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gift of a specific asset and that asset only
Example: (1) I devise Blackacre to my son John. (2) how about my car or all of my bank accounts? specific too --- will speaks as of death |
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DEMONSTRATIVE LEGACY
and example |
hybrid -- gift of pecuniary amount with instructions on where it shoudl come from
Example: (1) I give the sum of $5,000, TO BE PAID OUT OF the proceeds of sale of my Acme stock, to my sister Sarah. |
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GENERAL LEGACY
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gift of pecuniary amount
Example: I give the sum of $10,000 to my daughter Donna |
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RESIDUARY BEQUEST
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I give all the rest, residue, and remainder of my property to my wife, Agnes
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Order/Priority for Abatement - Generally
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when T's estate is partially insolvent, gifts are sacrificed to satisfy funeral expenses, expenses of administration, and creditors claims in this order:
(1) instestate property (2) residuary bequest (3) general legacy (4) demonstrative legacy (5) specific devise or bequest Note: abatement rules also apply in satisfaction of elective and pretermitted shares |
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ADEMPTION- Generally
Exemptions? |
if a specific device in a will is not a part of the estate during T's lifetime --- the gift is adeemed (and the person gets nothing). Partial ademptions exist too.
► if the specific device is for sale proceeds of item, gift is not adeemed if proceeds are traceable & part of the estate ► Interest in property as opposed to property itself -- e.g.: if device is of "my interest in Blackacre" then if Blackacre is sold in installments, Bene gets installments |
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Ademption -- What about looking at T's intent?
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► Majority : court doesn't care
► FL and Minority: evidence of intent is admissible to see if the property is missing/substituted from the estate for some reason (important where property's removal from estate did not result from testator's actions) |
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Ademption:
What is the special rule regarding bequests of securities? Two examples? |
Courts will construe a bequest of securities as a general legacy if possible to avoid ademption
- a gift of 200 shares -- general, not adeemed - a gift of my 200 shares -- specific, ADEEMED! |
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Ademption -
Application to General Legacies Application to Demonstrative Legacies |
► Ademption does NOT apply to general legacies (bequest of a specific dollar amount) If necessary, something must be sold to find the cash)
►does not apply to demonstrative legacies specify a general amount that identifies a particular asset as the primary source of payment; (it will be funded from other estate property instead) |
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Rules for Gifts from a Will or Revocable Trust - T is incompetent
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will executed before T declared incompetent: if specifically devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian...
the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds UNLESS T's disability has been adjudicated to have ceased and T survives the adjudication by one year |
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In FL, common law ademption applies except where changed by statute in what 2 instances?
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1) testator incapacitated and guardian appointed, then sale proceeds or for example casualty insurance amount paid to the guardian goes to the benefiicary.
Exception: incapacitated testator is later adjudicated NOT incapacitated, for at least a year prior to death. 2) Certain Proceeds to extent unpaid at Testator's death ►balance owing to T for sale of property under executory contract @ time of death ►condemnation award unpaid at time of death ► proceeds of casualty insurance unpaid at time of death ►property owned by testator as a result of foreclosure on a specifically devised obligation |
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Rules for Gifts from a Will or Revocable Trust - T is NOT incompetent
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a specific devisee has the right to remaining specifically devised property AND:
(1) any balance of purchase price owing from purchaser when contract is still executory at T's death (at common law, equitable conversion would apply, and T would no longer own real property, but merely a claim to the remaining purchase price) (2) any amount of condemnation award for taking of the property, to the extent unpaid at T's death (3) any amount of fire or casualty insurance proceeds unpaid at death (4) property acquired as a result of a foreclosure of a security interest on a specifically devised note |
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What happens when the specific devise of stock goes through splits & dividends after the execution of the` will?
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►specific-devisee is due any additional shares owned by T upon death that result from actions initiated by the corporate entity, or under a dividend reinvestment plan (but not exercise of purchase options).
►Dividends paid after T's death belong to the beneficiary too |
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Specifically Devised Stock - Increase in Shares
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specific devisee takes "any additional or other securities of the same entity owned by T because of action initiated by the entity, excluding any acquired by exercise of purchase options" (same rule for revocable trusts)
if additional consideration is given to T for them, then they do NOT go Note: cash dividends paid before T's death do NOT pass |
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Exonerating the Liens -
►Paying of Encumbrances on Devised Property |
►Common Law: debts on property will be paid off
►FL: a specific devisee of encumbered property is NOT entitled to have the encumbrance paid out of the residuary estate UNLESS the will shows such intent (a general direction in the will to pay debts does NOT show such an intent) |
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Latent Ambiguity
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extrinsic evidence IS admissible to clear up ambiguities, in the absence of clarifying evidence, the gift fails and passes with residuary estate
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Ambiguities and Mistakes - Plain Meaning Rule
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you cannot disturb the plain meaning of a will with extrinsic evidence
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Blanks within a Will
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court will NOT fill in blanks in a will
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Intestacy Rules
►Decedent Survived by Spouse |
(1) if survived by spouse but NO issue (lineal descendants) - spouse takes 100%
(2) if survived by spouse and issue all of whom are issue of the surviving spouse, spouse takes the first 60,000 plus 50% of any balance, issue take the rest (3) if survived by spouse and issue at least one of whom ►is not an issue of surviving spouse, spouse takes 50% and isue take the rest (equally) Note: as long as decedent survived by spouse OR lineal descendent, parents and collaterals NEVER take |
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Intestacy Rules:
►Decedent NOT Survived by Spouse |
(1) all to issue, if any (equally)
(2) if no issue, to parents or survivor (3) if no issue or parents, to parents' issue (siblings) (4) if no issue, parents or issue of parents, 1/2 to paternal grandparents and their issue and 1/2 to maternal grandparents and their issue (5) no inheritance beyond grandparents or issue of grandparents...instead, it escheats (no inheritence to anyone else, goes to state) |
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Intestacy Rules
Decedent NOT Survived by Spouse - Exception to Escheat |
before esceat, estate goes to kindred of last deceased spouse of the decedent, as though the last deceased spouse had survived decedent and then died intestate
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Disinheriting an Heir
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you can NOT disinherit your heir by fiat...if there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will
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Disclaimer of Inheritance
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not required to take the inheritence, if you are solvent, you can disclaim
a solvent heir or will beneficiary can disclaim his or her interest in a decedent's estate disclaimer, which can be total or partial, results in property passing as though disclaimant predeceased decedent disclaimer can be made by guardian of minor or incompetent, or by PR of a deceased person NOTE: under the FL disclaimer statute, a disclaimer may occur at any time prior to acceptance of the interest...BUT, to be effective for tax purposes, the disclaimer must occur within 9 months after decedent's death (for minor beneficiaries, the disclaimer must be made within 9 months of attaining 21) |
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Inheritance Rules -
►Children from Non-Spouses, no Adoption |
(1) if mother dies, child can inherit from mother (always)
ASSUMING CHILD IS NOT ADOPTED BY NEW HUSBAND: (2) if biological father dies, child cannot inherit UNLESS: (a) legitimated by marriage, or (b) written acknowledgment of paternity, or (c) adjudication of paternity before or after biological father's death (3) if the step-dad dies, child can NOT inherit UNLESS virtual adoption (unperformed agreement to adopt) |
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Inheritance Rules -
► Children that are put up for Adoption |
(1) child can inherit from adopted parents
(2) if biological mother dies, child cannot inherit from her (rights in adopted family only, and biological rights are severed) EXCEPTIONS: (1) step-parent adoption: if step-parent adopts child ---- (a) after biological father's death, the child inherits from adopted father, mother, and biological father's family members (b) after divorce, but during biological father's lifetime -- child inherits from adopted father and mother, but loses right to inherit from biological father and biological father's family (2) orhpan adoption - if both parents die and the child is adopted by close family members -- no affect on relationship to inherit from biological family |
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Inheritance Rules -
►Amongst 1/2 siblings |
1/2 siblings get 1/2 what whole siblings get
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Simultaneous Death Act - Generally
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when passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived
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Simultaneous Death Act - Rules (4)
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(1) WILLS - as though testator survived, as though beneficiary predeceased (generates lapse and potentially anti-lapse statute)
(2) INTESTACY - as though intestate survived and heir predeceased (3) INSURANCE - as though insured survived, as though beneficiary predeceased (proceeds to alternate beneficiary) (4) JOINT TENANCY WITH RIGHT OF SURVIVORSHIP - 1/2 as though tenant A survived, 1/2 as though tenant B survived Note: simultaneous death prevents operation of right of survivorship, so 1/2 passes through each tenant's estate (treated like tenancy in common) |
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Simultaneous Death Act -
►Time Requirement for Survival |
common law UPC: 120-hour rule requires spouse to survive for 120 hours to take as an heir or a beneficiary of a will
FLORIDA: any amount of time of survivorship, no matter how brief, is enough |
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Advancements of Inheritance -
►Intestate |
Common Law: advancements reduce inheritance...any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate
FLORIDA: exact opposite...no gift is an advancement UNLESS (1) declared as such in a contemporaneous writing by the decedent OR (2) acknowledge as such in writing by the heir |
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Advancements of Inheritence -
►Testate |
a companion doctrine called satisfaction applies to testate estates
a lifetime gift is NOT a prepayment of any interest under a will UNLESS (1) the will provides for this treatment (2) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, OR (3) the devisee acknowledges in writing that the gift is in satisfaction (of interest in will) |
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Rights of Surviving Spouse -
►Homestead |
160 acres of land if rural, 1/2 acre if within limits of an incorporated city or town
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Rights of Surviving Spouse -
►Exempt Personal Property |
surviving spouse or minor children are entitled to tangible personal property (furniture, etc) up to $10,000 AND automobiles used as family autos (withotu limit as to value) UNLESS they were specifically devised to someone else
These items pass to the spouse or children free of creditors' claims, and are not considered part of the intestate or elective shares (just come right off the top) BUT -- IF decedent was not survived by souse OR minor children, NO exempt personal property is set-aside, and these items are subject to creditors' claims |
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Rights of Surviving Spouse -
►Family Allowance |
up to $18,000 for support for surviving spouse or lineal heirs (ascendants and descendants) whom decedent was obligated to support (minor and incompetent children) or whom decedent was actually supporting (parents)
purpose is to provide support while assets tied up in probate |
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Rights of Surviving Spouse -
►Calculation |
the homestead, exempt personal property set aside, and family allowance are OVER AND ABOVE (1) property given to spouse by will, (2) elective share award, or (3) intestate share of surviving spouse (or minor children)
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Pretermitted Spouse (will written before marriage) - Generally
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pretermitted spouse gets an intestate share under the assumption that it was accidental to not revise to include the spouse in will
(never less than 50%, sometimes 100% depending on children, etc) |
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Pretermitted Spouse - ► Exceptions
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presumption of intestate share does NOT APPLY IF:
(1) pretermitted rights waived in pre- or post-nuptial agreement (2) spouse is provided for in will (but provision must have been made in contemplation of marriage..thus gift "to my friend W" whom T later marries does not count) (3) will discloses intent not to provide for the spouse |
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Spouse's Right to Claim Elective Share -
► Who has that right? ► How can you give up the right? |
(1) elective share is available to surviving spouse of decedents who die a domiciliary of FL
(2) right to elective share (also right as pretermitted spouse, intestate share, homestead, exempt personal property, family allowance) may be waived before or after marriage, with or without consideration, by written contract, agreement, or waiver ► fair disclosure of extent of estate required if waiver after marriage, but not if waiver is before marriage |
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Pretermitted Children - Generally
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a pretermitted child is born or adotped after the will and is entitled to take an intestate share (what they would get if there were no will at all)
UNLESS: (1) it appears from will that omission was intentional (2) H had other children at execution of the will and substantially all estate left to parent of pretermitted child (omission seems intentional, as to all children) |
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Pretermitted Children - Effect of Codicil after date of Birth
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the codicil makes the will as if it were executed on the date of the codicil, apply the same rules...but he will no longer be a pretermitted child
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Conduct Barring Party from Sharing in Estate
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a person who unlawfully and INTENTIONALLY kills the decedent is NOT entitled to any benefit from decedent's estate by will, by intestacy (including family allowance, exempt property, and homestead), as beneficiary of a revocable trust, life insurance contract or otherwise
Property passes as if killer predeceased decedent jointly held property with right of survivorship passes 1/2 to killer and 1/2 as if kill predeceased decedent Note: lapse is generated!! |
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Will Contests - Standing
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anyone whose share of the estate would increase if the will contest were to be successful
Note: portion of the will disinheriting anyone who challenges it is VOID |
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Will Contests - Lack of Testamentary Capacity - Test
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burden of proof is on the contestants....
TEST: (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? (practical consequences, not legal consequences) Note: mere old age, physical frailty, sickness, failing memory, or vacillating judgment are not inconsistent with testamentary capacity if the testamentary prerequisites were possessed by T |
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Will Contests - Lack of Capacity - Evidence
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evidence of T's capacity or lack of it must related to the circumstances at the time the will was executed, or shortly before or after
the more distant the time from the will's execution a particular fact may be, the less significance it has on the question in issue: did T, at the time the will was executed, have capacity? |
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Will Contests - Lack of Capacity - Adjudication of Incompetence
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if T had been adjudicated incompetent and a guardian appointed, this is evidence of lack of capacity but it does NOT raise a conclusive presumption (ie, it will not support a directed verdict)
Reasons: (1) the test for whether a guardian should be appointed is different from the 4-part test here (2) even if T had a mental problem, the jury could find that T wrote the will furing a "lucid" interval |
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Will Contests - Lack of Capacity - Insane Delusion
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a distinctive form of testamentary incapacity: where T is otherwise sane, but the will (or a gift in the will) is a product of an insane delusion, having no basis in fact ot reason, which T adheres to against all reason and evidence, and where the will (or gift in the will) is the product of the insane delusion
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Will Contests - Undue Influence
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burden of proof is on the contestants, who must show:
(1) existence and exertion of the influence (2) effect is to overpower the mind and will of the testator (3) the result is a will that would not have been executed but for the influence influence is NOT undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of one exerting the influence |
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Will Contests - Undue Influence - Proof
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NOT ENOUGH:
(1) mere opportunity to exert influence (2) mere susceptibility to influence due to illness, age, etc (such evidence does not, by itself, establish that T's mind was in fact subverted and overpowered) (3) mere fact of "unnatural disposition" -- that some children take less than others or are excluded entirely...it is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstances as a badge of undue influence Note: undue influence may be shown to the entire will, or as to one gift within the will |
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Will Contests - Undue Influence - Presumption
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there is a presumption of undue influence upon a showing that a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney-client, priest-parishioner, doctor-patient) draws or procures the execution of the will
suspicious circumstances may also tend to show undue influence...(relative stranger insinuates himself with T when T, because of mental or physical condition or age is susceptible to influence, and T then writes will that disinherits children) |
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Estate Administration - 3 Types
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(1) no administration
(2) summary administration (3) full administration |
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Estate Admnistration - No Administration
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no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills
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Estate Admnistration - Summary Administration
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estate less exempt property ($10,000 plus autos) is less than $75,000 (short-form administration)
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Estate Admnistration - Full Administration
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all other estates
PROCEDURE: (1) commencing - in the county where the decedent resided at death...begins when any interested person (beneficiary, heir, or creditor) files a petition for administration (2) caveat procedures - can file a caveat to protect your own interest (requires notification when administration begins)...notice is given of any petition for administration (formal - registered or certified mail) for any person with a sufficient interest to contest the will...uninterested parties (creditors) receive written notice |
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Estate Admnistration - Appointment of Personal Representative
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PR is appointed to manage the estate during administration
(1) eligibility - FL banks and persons over 18 who have not been convicted of a felony...if they are not a FL resident, the person must be a relative (or a spouse of a relative) of teh decedent or her spouse (2) priority - 1st to named person in will, then person selected by majority of beneficiaries, then beneficiary selected by court (if no will, 1st to surviving spouse, 2nd to majority selection by heirs, 3rd to closest heir) (3) bond requirement - unless waived in the will a PR (other than a bank) must file a bond to secure the faithful performance of duties (4) duties -- PR is issued letters of administration as evidence of authority to administer the estate...it is the duty of the PR to collect the decedent's assets, pay off any creditors and distribute the balance to those entitled to it |
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Estate Admnistration - Powers of Personal Representative
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General Rule - a PR has all power necessary to the proper administration of the estate and may act without court authority in the exercise of those powers
EXCEPTIONS: unless otherwise provided in the will, a court order is necessary to sell real property or to continue the operation of the decedent's unincorporated business for more than 4 months |
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Estate Admnistration - Joint Personal Representatives
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for wills executed BEFORE October 1, 1987: joint PR must act by unanimous consent
for wills executed AFTER October 1, 1987: joint PR may act by majority rule a PR who objects in writing cannot be held liable for the actions of the majority |
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Estate Admnistration - Notice to Creditors
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the PR must publish a notice to creditors for two consecutive weeks in a newspaper inthe county where the estate is administered
additionally, the PR must mail actual notice to all reasonably ascertainable creditors |
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Estate Admnistration - Notice of Administration
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the PR must serve a copy of the notice of administration on the decedent's spouse and beneficiaries
a copy must also be served on the trustee of the decedent's revocable trust (if any) and any perosn who might be entitled to exempt property |
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Estate Admnistration - Inventory
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within 60 days of the issuance of his letters of administration, the PR must file a written inventory of the assets of eth estate
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Estate Admnistration - Creditors Claims - Time Limits
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all creditors must file their claims against the estate within the applicable SoL period as follows:
(1) if NO NOTICE to creditors is published, creditors must file within 2 years of the decedent's death (2) if NOTICE is published, this period is shortened to 3 months from the 1st date of publication EXCEPT that creditors who are entitled to actual notice may have 30 days from the date of teh actual notice even if that extends beyond the normal 3 month period |
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Elective Share Trust - Generally
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trust created by the decedent for the spouse's benefit
spouse must have the right to income for life if trustee has power to distribute principal for the spouse's health, support and maintenance, reduce elective share by an amount equal to 80% of the value of the trust if the trustee has no such power, reduce elective share by 50% of the value of the trust |
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Estate Admnistration - Creditor's Claims - Order of Payment
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(1) expenses of administration
(2) funeral expenses up to $6,000 (3) medicaid claims and debts and taxes with preference under Federal law (4) reasonable and necessary medical expenses for last 60 days (5) family allowances (6) child support arrearages (7) post-death expenses of continuing decedent's business not to exceed assets of the business (8) all other |
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NONPROBATE ASSETS - Rule for wills
3 Types of Nonprobate assets |
► A will cannot make a gift of nonprobate assets. Types:
1) Property passing by Contract -- life insurance & EE benefits 2) Property passing by right of survivorship -- held by D & another as JTwRS or TBE 3) Property held in Trust |
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Joint will
Mutual Will |
joint will - will of 2+ people executed on same piece of paper
Mutual will -- two separate wills containing reciprocal "mirror" provisions of two or more persons executed on the same piece of paper |
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Contractual Will - Rule for revoking
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► Either party may revoke will during their joint lives a pond giving notice to the other
► If a party dies, survivor cannot change their will |
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JOINT WILL or MUTUAL WILL -- FL Presumption as to whether they are a CONTRACT
FL Requirements |
► NO PRESUMPTION OF CONTRACT
► Florida requires that any agreement with another party to make or not revoke a will , or to give or not revoke a devise must be IN WRITING AND SIGNED IN PRESENCE OF 2 WITNESSES |
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What action can beneficiaries take when survivor's will is revoked in breach of a will contract?
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CONSTRUCTIVE TRUST
- Contracted will cannot be probated because it was revoked by 2nd will - 2nd will admitted to probate - beneficiaries of first will bring an action to impress a constructive trust against the beneficiaries of the 2nd will |
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Will agreement/contract executed by nonresident?
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Valid in florida whether or not agreeing party is a resident of FL at time of death, IF valid under the laws of state or country where executed
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???? Spouse's Right to Claim Elective Share - Calculation
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elective share is 30% of the elective estate which includes the estate subject to administration (including real property situated outside FL) as well as the following:
ADD IN (1) 1/2 of all property passing by right of survivorship (joint tenancy, tenancy by entireties) (2) property in a revocable trust created by the decedent (3) property in an irrevocable trust created by the decedent if the trustee can make distributions to the decedent (4) gifts of $10,000 (per donee) made by the decedent within a year of death SUBTRACT OUT value of any property passing from the decedent to spouse by (1) will, (2) right of survivorship, (3) as benficiary of a life insurance contract, or (4) as beneficiary of an elective share trust (trust created by decedent for spouse's benefit) |
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SURVIVING SPOUSE'S ELECTIVE SHARE
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% Of a deceased spouse's estate that a surviving spouse may choose to receive INSTEAD of taking under the will or in the event of being unjustifiably disinherited
► In Florida it is 30% OF the ELECTIVE ESTATE ► This is in addition to a spouse's right to exempt property, family allowance, homestead |
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Procedure for making elective election
1) filed by 2) time for withdrawal 3) who may elect |
1) filed on or before the earlier of: date 6 months after service of notice of administration or 2 years after death (court can extend)
2) election may be withdrawn within 8 months after death and before court order 3) surviving spouse, her attorney, or guardian of her property or holder of durable power of attorney if she's incapacitated, Personal representative (SS died before electing) CANNOT elect. |
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What are the requirements to have a valid pre- or post-nuptual Waiver of election and/or other rights?
What kinds of rights can be waived pre or post marriage? |
1. written instrument signed by waiving party and two subscribing witnesses (as of 2002). Nonresident waivers are valid if valid under laws of state or country where executed. NO Consideration needed. Prenuptual: no disclosure required; Postnuptual: disclosure required
2) Can waive right to: homestead, election, be intestate successor, pretermitted spouse, exempt personal property, family allowance and preference for appointment as personal representative |
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Treatment of a complete property settlement made after or in contemplation of separation:
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Unless otherwise provided, a complete property settlement waives all rights to elective share, homestead, exempt personal property, family allowance, preference in appt as personal rep, and all benefits that would otherwise pass by:
- intestate succession, - as a pretermitted spouse, - or by will executed prior to the property settlement. |
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Descent of HOMESTEAD property when IMPROPERLY DEVISED in a Will
►When there's a surviving spouse AND one or more descendants ►all other cases |
►Surviving spouse + at least 1 descendant:
SS takes LIFE ESTATE, vested remainder in the descendants surviving at the time of T's death, per stirpes. NOTE: SS may elect to take 1/2 interest in HS property as TIC with other descendants instead ►all other descends in the same manner as other intestate property |
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When homestead-protected property is passed by will to others, which class of family members inherit the property with the protection of exemption from forced sale?
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Passes to "heirs" therefore any family member within the class of persons categorized in the intestacy statute as possible heirs.
HOWEVER, will may specify that HS property be sold and proceeds distributed (if allowed); then protection is lost. |