Fl Wills Mc Cards

Front 1

Statutory Requirements for a valid Will)

Back 1

(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

Front 2

Must T always sign in the presence of the witnesses?

Back 2

NO, T can also acknowledge his signature in their presence later when they sign it

Front 3

Is there a publication requirement?

Back 3

NO, witnesses do not need to know the document is a will (obviously, T does)

Front 4

Does the order of signing matter?

Back 4

order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction

(although, normally T signs and then the witnesses)

Front 5

What is a holographic will and how are they handled?

Back 5

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)

Front 6

Is a handwritten will ever valid in FL?

Back 6

YES, if also signed by two witnesses

Front 7

Discuss the presence requirement as applied to witnesses

Back 7

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)

Front 8

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?

Back 8

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)

Front 9

What happens with an interested witness' signature?

Back 9

a will or any provision thereof is NOT invalid because the will is signed by an interested witness

Front 10

Proof of Wills - Generally

Back 10

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

Front 11

Self-Proved Wills - Generally

Back 11

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

Front 12

Statute of Limitations - Generally

Back 12

once administration of an estate is completed, everything is final

Thus, a later discovered will cannot be admitted to probate

(once closed, cannot reopen)

Front 13

Revocation - What is the best way to revoke a will?

Back 13

write it down, sign it with 2 witnesses

Front 14

Revocation - Physical Act

Back 14

revocation by physical act requires:
(1) intent to revoke AND
(2) physical act

Physical Act: refers to "burned, torn, canceled, obliterated, or destroyed"

Front 15

Revocation - Sufficiency of Physical Act

Back 15

an act of revocation on on executed copy revokes all executed copies (cancelled)

Front 16

Is drawing lines and writing void on each sheet enough to revoke?

Back 16

YES, but just drawing the lines on each sheet with the intent to revoke is enough too

Front 17

Is writing void on the back of the will enough to revoke?

Back 17

NO, must cross some of the language of the will (line through signatures, words, etc)

Front 18

Is writing void across each page of a copy of the will enough to revoke?

Back 18

NO, must do so on the original will itself, not a copy

Front 19

Revocation - Presumption if...

will in T's possession from tine of execution until death and found in mutilated condition after T's death

Back 19

Presumption --- T did mutilating with intent to revoke (will is presumptively revoked)

Front 20

Revocation - Presumption if...

Will last seen in T's possession and control, but not found after T's death.

Back 20

Reason it can't be found is that T destroyed with intent to revoke. (will is presumptively revoked)

Front 21

Revocation by a Physical Act of a Third Party (by proxy)

Back 21

revocation by another person must be:
(1) done at T's direction AND
(2) in T's presence

Front 22

How can you probate a will that has been destroyed?

Back 22

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

Front 23

What is a "correct copy"?

Back 23

a carbon or xerox copy, not a typewritten draft from which only a few minor changes had been made

Front 24

Are attorneys liable for wills?

Back 24

attorneys can be sued under negligence (tort liability) for improper wills

Front 25

Revocation by Inconsistency (with a codicil)

Back 25

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

Front 26

Requirements of a Codicil

Back 26

must be executed in the same manner as the will in order to be valid

Front 27

Effect of Revocation of a Will

Back 27

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

Front 28

Impact of Divorce on Will

Back 28

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

Front 29

Impact of Divorce and then Re-marriage to the Ex on a will?

Back 29

once divorced, they are out...subsequent remarriage does not put them back in

Front 30

Impact of Separation on Will (no divorce)

Back 30

mere separation does NOT change a will

Front 31

Impact of Separation Accompanied by Complete Property Settlement

Back 31

settlement agreement is a waiver of interests within the will

construe the will as if the other were dead

Front 32

What can the ex-spouse take as a beneficiary of T?

Back 32

NOT a revocable inter vivos trust (divorce also affects the revocable trust)

YES to a life insurance policy (divorce does not affect)

Front 33

Once a will is typed, can T strike through a portion and handwrite something else before signing?

Back 33

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

Front 34

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?

Back 34

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

Front 35

Depedent Relative Revocation - Generally

Back 35

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

Front 36

Incorporation by Reference of an extrinsic document-
► Requirements

Back 36

(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"

Front 37

Incorporation by Reference -
► Exception to "must be in existence" requirement, and 3 requirements for incorporation to be valid

Back 37

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

Front 38

Acts of Independent Significance Doctrine

4 Situations

Back 38

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)"

Front 39

What if a will devises "my home and its contents"?

Back 39

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)

Front 40

Basic Lapse Rule

Back 40

(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.

Front 41

Anti-lapse statute:
► requirements
► When not applicable?

Back 41

►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

Front 42

Class Gift Rule

Back 42

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

Front 43

What happens when the residuary estate is devised to more than 1 person and 1 of them dies first?

Back 43

► 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

Front 44

SPECIFIC DEVICE/BEQUEST

Back 44

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

Front 45

DEMONSTRATIVE LEGACY

and example

Back 45

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.

Front 46

GENERAL LEGACY

Back 46

gift of pecuniary amount

Example:
I give the sum of $10,000 to my daughter Donna

Front 47

RESIDUARY BEQUEST

Back 47

I give all the rest, residue, and remainder of my property to my wife, Agnes

Front 48

Order/Priority for Abatement - Generally

Back 48

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

Front 49

ADEMPTION- Generally

Exemptions?

Back 49

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

Front 50

Ademption -- What about looking at T's intent?

Back 50

► 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)

Front 51

Ademption:
What is the special rule regarding bequests of securities?

Two examples?

Back 51

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!

Front 52

Ademption -
Application to General Legacies
Application to Demonstrative Legacies

Back 52

► 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)

Front 53

Rules for Gifts from a Will or Revocable Trust - T is incompetent

Back 53

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

Front 54

In FL, common law ademption applies except where changed by statute in what 2 instances?

Back 54

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

Front 55

Rules for Gifts from a Will or Revocable Trust - T is NOT incompetent

Back 55

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

Front 56

What happens when the specific devise of stock goes through splits & dividends after the execution of the` will?

Back 56

►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

Front 57

Specifically Devised Stock - Increase in Shares

Back 57

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

Front 58

Exonerating the Liens -
►Paying of Encumbrances on Devised Property

Back 58

►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)

Front 59

Latent Ambiguity

Back 59

extrinsic evidence IS admissible to clear up ambiguities, in the absence of clarifying evidence, the gift fails and passes with residuary estate

Front 60

Ambiguities and Mistakes - Plain Meaning Rule

Back 60

you cannot disturb the plain meaning of a will with extrinsic evidence

Front 61

Blanks within a Will

Back 61

court will NOT fill in blanks in a will

Front 62

Intestacy Rules

►Decedent Survived by Spouse

Back 62

(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

Front 63

Intestacy Rules:

►Decedent NOT Survived by Spouse

Back 63

(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)

Front 64

Intestacy Rules

Decedent NOT Survived by Spouse - Exception to Escheat

Back 64

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

Front 65

Disinheriting an Heir

Back 65

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

Front 66

Disclaimer of Inheritance

Back 66

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)

Front 67

Inheritance Rules -
►Children from Non-Spouses, no Adoption

Back 67

(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)

Front 68

Inheritance Rules -
► Children that are put up for Adoption

Back 68

(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

Front 69

Inheritance Rules -
►Amongst 1/2 siblings

Back 69

1/2 siblings get 1/2 what whole siblings get

Front 70

Simultaneous Death Act - Generally

Back 70

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

Front 71

Simultaneous Death Act - Rules (4)

Back 71

(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)

Front 72

Simultaneous Death Act -
►Time Requirement for Survival

Back 72

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

Front 73

Advancements of Inheritance -
►Intestate

Back 73

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

Front 74

Advancements of Inheritence -
►Testate

Back 74

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)

Front 75

Rights of Surviving Spouse -
►Homestead

Back 75

160 acres of land if rural, 1/2 acre if within limits of an incorporated city or town

Front 76

Rights of Surviving Spouse -
►Exempt Personal Property

Back 76

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

Front 77

Rights of Surviving Spouse -
►Family Allowance

Back 77

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

Front 78

Rights of Surviving Spouse -
►Calculation

Back 78

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)

Front 79

Pretermitted Spouse (will written before marriage) - Generally

Back 79

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)

Front 80

Pretermitted Spouse - ► Exceptions

Back 80

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

Front 81

Spouse's Right to Claim Elective Share -
► Who has that right?
► How can you give up the right?

Back 81

(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

Front 82

Pretermitted Children - Generally

Back 82

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)

Front 83

Pretermitted Children - Effect of Codicil after date of Birth

Back 83

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

Front 84

Conduct Barring Party from Sharing in Estate

Back 84

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!!

Front 85

Will Contests - Standing

Back 85

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

Front 86

Will Contests - Lack of Testamentary Capacity - Test

Back 86

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

Front 87

Will Contests - Lack of Capacity - Evidence

Back 87

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?

Front 88

Will Contests - Lack of Capacity - Adjudication of Incompetence

Back 88

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

Front 89

Will Contests - Lack of Capacity - Insane Delusion

Back 89

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

Front 90

Will Contests - Undue Influence

Back 90

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

Front 91

Will Contests - Undue Influence - Proof

Back 91

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

Front 92

Will Contests - Undue Influence - Presumption

Back 92

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)

Front 93

Estate Administration - 3 Types

Back 93

(1) no administration
(2) summary administration
(3) full administration

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Estate Admnistration - No Administration

Back 94

no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills

Front 95

Estate Admnistration - Summary Administration

Back 95

estate less exempt property ($10,000 plus autos) is less than $75,000 (short-form administration)

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Estate Admnistration - Full Administration

Back 96

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

Front 97

Estate Admnistration - Appointment of Personal Representative

Back 97

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

Front 98

Estate Admnistration - Powers of Personal Representative

Back 98

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

Front 99

Estate Admnistration - Joint Personal Representatives

Back 99

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

Front 100

Estate Admnistration - Notice to Creditors

Back 100

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

Front 101

Estate Admnistration - Notice of Administration

Back 101

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

Front 102

Estate Admnistration - Inventory

Back 102

within 60 days of the issuance of his letters of administration, the PR must file a written inventory of the assets of eth estate

Front 103

Estate Admnistration - Creditors Claims - Time Limits

Back 103

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

Front 104

Elective Share Trust - Generally

Back 104

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

Front 105

Estate Admnistration - Creditor's Claims - Order of Payment

Back 105

(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

Front 106

NONPROBATE ASSETS - Rule for wills

3 Types of Nonprobate assets

Back 106

► 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

Front 107

Joint will

Mutual Will

Back 107

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

Front 108

Contractual Will - Rule for revoking

Back 108

► 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

Front 109

JOINT WILL or MUTUAL WILL -- FL Presumption as to whether they are a CONTRACT

FL Requirements

Back 109

► 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

Front 110

What action can beneficiaries take when survivor's will is revoked in breach of a will contract?

Back 110

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

Front 111

Will agreement/contract executed by nonresident?

Back 111

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

Front 112

???? Spouse's Right to Claim Elective Share - Calculation

Back 112

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

Back 113

% 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

Front 114

Procedure for making elective election
1) filed by
2) time for withdrawal
3) who may elect

Back 114

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.

Front 115

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?

Back 115

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

Front 116

Treatment of a complete property settlement made after or in contemplation of separation:

Back 116

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

Back 117

►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

Front 118

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?

Back 118

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.