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106 Cards in this Set

  • Front
  • Back
Statutory Requirements (8)
(1) T must be 18 or over
(2) will must be in writing (no effect is given to oral statements)
(3) T must sign will (liberal rule)
(4) at the end of the will
(5) in the presence of two witnesses
(6) Two attesting witnesses
(7) who sign in T's presence
(8) and in the presence of each other
What constitutes T's signature?
any mark, such as initials, or an X will serve as signature if so intended

Signature may be another person at T's direction, in T's presence
What if someone signs T's name for T under T's direction?
If they also sign their own name, then they count as a witness as well
Must T always sign in the presence of the witnesses?
NO, T can also acknowledge his signature in their presence later when they sign it
Is there a publication requirement?
NO, witnesses do not need to know the document is a will (obviously, T does)
Does the order of signing matter?
order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction

(although, normally T signs and then the witnesses)
What happens if a portion of the will (ex: clause naming PR) follows T's signature?
Clause present at time of execution:
MAJORITY - above the signature = good; below the signature = bad
FLORIDA:
temporal requirement (sign when done writing the will) so it would be a question for the jury to decide (if T was done writing it when signed, it is all accepted)

Clause added after execution:
will = valid
addition = invalid
you can NOT add to it, must replace the whole thing (or make change and re-execute it, etc.)
What is a holographic will and how are they handled?
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)
Is a handwritten will ever valid in FL?
YES, if also signed by two witnesses
Discuss the presence requirement as applied to witnesses
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)
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?
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)
What happens with an interested witness' signature?
a will or any provision thereof is NOT invalid because the will is signed by an interested witness
Proof of Wills - Generally
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
Self-Proved Wills - Generally
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
Statute of Limitations - Generally
once administration of an estate is completed, everything is final

Thus, a later discovered will cannot be admitted to probate

(once closed, cannot reopen)
Revocation - What is the best way to revoke a will?
write it down, sign it with 2 witnesses
Revocation - Physical Act
revocation by physical act requires:
(1) intent to revoke AND
(2) physical act

Physical Act: refers to "burned, torn, canceled, obliterated, or destroyed"
Revocation - Sufficiency of Physical Act
an act of revocation on on executed copy revokes all executed copies (cancelled)
Is drawing lines and writing void on each sheet enough to revoke?
YES, but just drawing the lines on each sheet with the intent to revoke is enough too
Is writing void on the back of the will enough to revoke?
NO, must cross some of the language of the will (line through signatures, words, etc)
Is writing void across each page of a copy of the will enough to revoke?
NO, must do so on the original will itself, not a copy
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)
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)
Revocation by a Physical Act of a Third Party (by proxy)
revocation by another person must be:
(1) done at T's direction AND
(2) in T's presence
How can you probate a will that has been destroyed?
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
What is a "correct copy"?
a carbon or xerox copy, not a typewritten draft from which only a few minor changes had been made
Are attorneys liable for wills?
attorneys can be sued under negligence (tort liability) for improper wills
Revocation by Inconsistency (with a codicil)
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
Requirements of a Codicil
must be executed in the same manner as the will in order to be valid
Effect of Revocation of a Will
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
Impact of Divorce on Will
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
Impact of Divorce and then Re-marriage to the Ex on a will?
once divorced, they are out...subsequent remarriage does not put them back in
Impact of Separation on Will (no divorce)
mere separation does NOT change a will
Impact of Separation Accompanied by Complete Property Settlement
settlement agreement is a waiver of interests within the will

construe the will as if the other were dead
What can the ex take as a beneficiary of T?
NOT a revocable inter vivos trust (divorce also affects the revocable trust)

YES to a life insurance policy (divorce does not affect)
Once a will is typed, can T strike through a portion and handwrite something else before signing?
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
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?
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 -- revoation of 2nd will does NOT revive the 1st one...the only way to revive is to re-execute or re-publish it by codicil
Depedent Relative Revocation - Generally
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
Incorporation by Reference - Facts of Independent Significance

Doctrine of Incorporation by Reference
to incorporate an extrinsic document by reference:
(1) writing must be in existence at time will was executed
(2) will must manifest an intent to incorporate the document
(3) will must "describe the writing sufficiently to permit its identification"
Incorporation by Reference - Facts of Independent Significance

Tangible Personal Propety Exception
statutory exception found in FL and many states

will may refer to written statement or list that disposes of tangible personal property (other than money, property used in T/B) not specifically disposed on by the will

the written list MUST BE:
(1) signed by T (or be in T's handwriting)
(2) describe the property with reasonable certainty

it may be writen before or after the will is executed, and may be altered at any time
Incorporation by Reference - Facts of Independent Significance

Doctrine of Independent Significance
acts having an independent lifetime motive may impact on the will as well (any lifetime motive is enough)
What if a will devises "my home and its contents"?
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)
Basic Lapse Rules (5)
(1) when a beneficiary named in the will or trust dies before the testator, the gift lapses
(2) UNLESS it is saved by the state's anti-lapse statute
(3) the FL statute applies when the predeceasing beneficiary is T's grandparent (or lineal decendent thereof) who leaves issue
(3) will that devises all property to 3rd party - the anti-lapse statute decides who takes the property upon her death, and the will determines everything else
(5) provision that says $$$ IF they survive T --- explicit requirement: anti-lapse statute no longer applies, gift fails according to terms, and is added to the residue
Class Gift Rule
when there is a gift by will to a group of persons generically described in a class (children, nephews, and nieces, etc) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take
What happens when residuary estate is devised to more than 1 person and 1 of them dies first?
if the residuary estate is devised to two or more persons and the gift to one of them fails for any reason, the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue (similar to class-gift situation)
What is a specific devise or bequest?
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
What is a demonstrative legacy?
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.
What is a general legacy?
gift of pecuniary amount

Example:
I give the sum of $10,000 to my daughter Donna
What is a residuary bequest?
I give all the rest, residue, and remainder of my property to my wife, Agnes
What is Intestate Property?
residue that is undisposed on in the will

Example:
when there is a partial intestacy for some reason (eg, all of the residuary beneficiaries predecease the testator, and teh case is not covered by the anti-lapse statute)
Order of Abatement - Generally
when T's estate is partially insolvent, gifts are sacrificed to satisfy funeral expenses, expenses of administation, 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
Ademption - Generally
if a specific gift in a will is sold during T's lifetime --- the gift is adeemed (and the person gets nothing)

if a non-specific gift is sold -- not adeemed (such as a demonstrative legacy)
Ademption - Application to Demonstrative Legacies
ademption does NOT apply to demonstrative legacies (it will be funded from other estate property instead)
Rules for Gifts from a Will or Revocable Trust - T is incompetent
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
Rules for Gifts from a Will or Revocable Trust - T is NOT incompetent
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
Specifically Devised Stock - Increase in Shares
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
Specifically Devised Stock - Merger
specific devisee gets "securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity
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)
Latent Ambiguity
extrinsic evidence IS admissible to clear up ambiguities, in the absence of clarifying evidence, the gift fails and passes with residuary estate
Ambiguities and Mistakes - Plain Meaning Rule
you cannot disturb the plain meaning of a will with extrinsic evidence
Blanks within a Will
court will NOT fill in blanks in a will
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
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)
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
Disinheriting an Heir
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
Disclaimer of Inheritance
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)
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)
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
Inheritance Rules - Amongst 1/2 siblings
1/2 siblings get 1/2 what whole siblings get
Simultaneous Death Act - Generally
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
Simultaneous Death Act - Rules (4)
(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)
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
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
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)
Rights of Surviving Spouse - Homestead
160 acres of land if rural, 1/2 acre if within limits of an incorporated city or town
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
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
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)
Pretermitted Spouse (will written before marriage) - Generally
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)
Pretermitted Spouse - Exceptions
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
Spouse's Right to Claim Elective Share - Rules (4)
(1) elective share is avialable to surviving spouse (widowers as well as widows) of decedents who die a domiciliary of FL
(2) the share is NOT automatic, spouse must file notice of election within 6 months of service of notice of administration on the surviving spouse
(3) election can be made on behalf of an incompetent spouse by guardian or holer of "durable" power of attorney ("this power of attorney shall not terminate on the disability or incapacity of the principal") upon a showing that election is in spouse's best interest
(4) 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, agreeement, or waiver (fair disclosure of extent of estate required if waiver after marriage, but not if waiver is before marriage)
Spouse's Right to Claim Elective Share - Calculation
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)
Elective Share Trust - Generally
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
Pretermitted Children - Generally
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)
Pretermitted Children - Effect of Codicil after Birth
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
Conduct Barring Party from Sharing in Estate
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!!
Will Contests - Standing
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
Will Contests - Lack of Testamentary Capacity - Test
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
Will Contests - Lack of Capacity - Evidence
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?
Will Contests - Lack of Capacity - Adjudication of Incompetence
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
Will Contests - Lack of Capacity - Insane Delusion
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
Will Contests - Undue Influence
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
Will Contests - Undue Influence - Proof
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
Will Contests - Undue Influence - Presumption
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)
Estate Administration - 3 Types
(1) no administration
(2) summary administration
(3) full administration
Estate Admnistration - No Administration
no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills
Estate Admnistration - Summary Administration
estate less exempt property ($10,000 plus autos) is less than $75,000 (short-form administration)
Estate Admnistration - Full Administration
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
Estate Admnistration - Appointment of Personal Representative
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
Estate Admnistration - Powers of Personal Representative
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
Estate Admnistration - Joint Personal Representatives
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
Estate Admnistration - Notice to Creditors
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
Estate Admnistration - Notice of Administration
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
Estate Admnistration - Inventory
within 60 days of the issuance of his letters of administration, the PR must file a written inventory of the assets of eth estate
Estate Admnistration - Creditors Claims - Time Limits
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
Estate Admnistration - Creditor's Claims - Order of Payment
(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