Wills

Front 1

Functions of a will

Back 1

1. Dispose of the testator's property
2. Revoke a prior will or codicil
3. Appoint a personal representative
4. Indicate if debts should be paid from particular funds or allocated pro rata among a group of beneficiaries

Front 2

Intestate

Back 2

an individual who dies without a will

Front 3

testator

Back 3

an individual who dies with a valid will

Front 4

Testatrix

Back 4

(woman) who dies with a valid will

Front 5

Devisees

Back 5

persons receiving property through will provisions

Front 6

Heir at law

Back 6

a person entitled to take the decedent's property under the laws of intestate succession

Front 7

Earlier cases may distinguish between legatees, who receive bequests of personal property, and devisees, who receive devises of real property, but florida?

Back 7

• Florida does not currently make this distinction

Front 8

Beneficiaries

Back 8

devisees of a testate estate and heirs at law of an intestate estate
Devise - the property received by a devisee; also used as a verb meaning to dispose through a will

Front 9

Probate

Back 9

a process for administering a decedent's testate and intestate property

Front 10

Probate of a will

Back 10

the process of establishing the validity of a will and admitting it to probate
Probate Estate - refers to property that is subject to administration (often referred to as property subject to probate)

Front 11

Items which are a part of the decedent's probate estate

Back 11

1. Property owned solely by the decedent
2. The interest a decedent owns as a tenant in common
3. A vested remainder owned by the decedent

Front 12

Domicile

Back 12

is an important concept in determining what property is included in the probate estate

Front 13

Where is tangible and intangible personal property subject to probate

Back 13

Generally tangible and intangible personal property is subject to probate in the jurisdiction in which the decedent is domiciled at death

Front 14

Where is real property subject to probate

Back 14

Real property is subject to probate in the jurisdiction which it is located

Front 15

example of real, tangible, intangible property subject to probate

Back 15

• i.e. the estate of a decedent domiciled in Florida who owned real estate in North Carolina could be subject to probate in both states. The Florida proceeding will cover the real property located in Florida and the decedent's tangible and intangible property located anywhere. The ancillary proceeding in North Carolina will cover the North Carolina real estate (and it may cover certain personalty located there)

Front 16

Gross estate

Back 16

a measure of the decedent's wealth. Not limited to probate property. (federal tax concept)• Includes the value of nonprobate property if the decedent is treated as having sufficient interests in, or rights to affect enjoyment of, that property
• As a general rule, if an asset is included in the gross estate, its value is treated as the recipient's basis in that property for purposes of a later sale

Front 17

Elective share estate

Back 17

measure of the value of a decedent's estate that is not limited to probate property. This computation determines the value of a decedent's surviving spouse is entitled to elect to take against the augmented estate

Front 18

Personal representative

Back 18

the person who administers an estate (also executor and executrix (testate estates) and administrator and administratrix (intestate estates)

Front 19

Power of appointment

Back 19

allows a property owner to give another person the right to decide who will ultimately receive the owner's property

Front 20

Donor

Back 20

is the person who creates the power of appointment and whose property will ultimately be distributed to another

Front 21

donee or power holder

Back 21

is the person who decides who will receive the property
Objects of the power - eligible recipients of the donor's objects

Front 22

appointee

Back 22

the person actually chosen by the power holder to receive property

Front 23

durable power of attorney

Back 23

authorizes one person (the attorney in fact) to act for another (the principal)

Front 24

When does the durable power of attorney become effective?

Back 24

When the person granting the power becomes incapacitated

Front 25

General power of appointment

Back 25

the power holder is allowed to appoint the property to herself, her estate, or creditors of either

Front 26

Special power of appointment

Back 26

the power holder is not allowed to appoint the property to herself, her estate, or the creditors of either

Front 27

Designation of health care surrogate

Back 27

authorizes one person to make medical decisions for another -- operates when the first person is unable to make those decisions or is unable to provide informed consent to treatment

Front 28

Living will

Back 28

a document that indicates an individual's desires regarding life-prolonging procedures in situations that involve terminal medical conditions, end-stage medical conditions, or persistent vegetative states

Front 29

Intestate Succession

Back 29

decedent's spouse and lineal descendants will take decedent's probate property over the decedent's parents, siblings, and collateral heirs

Front 30

What if a will fails to name a personal representative?

Back 30

The court can appoint one

Front 31

as a general rule, if a husband and wife take title to property in both of their names?

Back 31

• Florida law presumes they own that property as tenants by the entirety unless the instrument states otherwise.

Front 32

What if decedent and his/her spouse owned property as tenants by the entirety?

Back 32

The surviving spouse takes all of the property by operation of law

Front 33

What if the owners are not married to each other?

Back 33

• Florida requires that language creating a right of survivorship appear in the document creating the property interest. In the absence of such language, the ownership interest will be treated as a tenancy in common

Front 34

Is a decedent's share of tenancy in common property subject to probate?

Back 34

yes

Front 35

If 2 or more people own a bank account, what are the consequences concerning a right of survivorship?

Back 35

Unless a document states to the contrary, a right of survivorship is presumed to exist. This presumption is rebuttable "only by proof of fraud or undue influence, or clear and convincing proof of a contrary intent"

Front 36

In an action by the creditor of one spouse seeking to garnish a joint bank account titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, should a presumption arise that shifts the burden to the creditor to prove the subject account was not held as a tenancy by the entireties?

Back 36

yes

Front 37

In an action by the creditor of one spouse seeking to garnish a bank account jointly titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, but the signature card expressly states that the account is owned as a joint tenancy with right of survivorship, does that statement alone constitute an express disclaimer that the account is not held as a tenancy by the entireties?

Back 37

NO

Front 38

In an action by the creditor of one spouse seeking to garnish a bank account jointly titled in the name of both spouses, if the unities required to establish ownership as a tenancy by the entireties exist, but the signature card expressly disclaims the tenancy by the entireties form of ownership, may the debtor resort to extrinsic evidence to prove that a tenancy by the entireties was intended if the debtor establishes that the financial institution did not offer a tenancy by the entireties form of account ownership?

Back 38

yes

Front 39

Pay on Death (POD)

Back 39

created when one person opens and funds an account at a financial institution, such as a bank or stock brokerage firm, and designates one or more persons who are to receive the account assets on his death

Front 40

What do Pay on Death accounts refer to?

Back 40

Bank Accounts

Front 41

What do Transfer on Death (TOD) accounts refer to?

Back 41

Securities

Front 42

Who is the owner of a POD or TOD account?

Back 42

The person who opens and funds the account

Front 43

Do the beneficiaries of a POD or TOD account have any rights to the account while the depositing owner is alive?

Back 43

NO

Front 44

When do the beneficiaries rights to the POD or TOD accounts vest?

Back 44

On the death of the owner

Front 45

Pay on Death accounts allow the depositing owner to make a gift effective on death without?

Back 45

Complying with testamentary formalities and without the need for probate

Front 46

How may an owner revoke the intended gift?

Back 46

1. By withdrawing funds
2. Closing the account
3. Removing or changing the designated beneficiary

Front 47

What if the designated beneficiary survives the account owner

Back 47

The account is not probate property

Front 48

What if no beneficiary survives the owner?

Back 48

The account is probate property

Front 49

A life insurance policy is a contract between?

Back 49

The policy owner/purchaser and the insurance company that issues the policy

Front 50

What does the insurance company promise?

Back 50

To pay the policy proceeds to the designated the designated beneficiary when the insured dies

Front 51

Are life insurance policies more valuable during the decedent's life or after the decedent's death?

Back 51

After decedent's death. During the decedent's life, the policy may have a cash surrender value which is generally much smaller than the face value that is payable on death.

Front 52

In addition to the company issuing the policy, what are the 3 other persons whom may potentially be involved in the life insurance policy?

Back 52

1. Policy owner - applies and pays for the policy
2. Beneficiary
3. Insured - the individual whose death causes the insurance company to pay the policy proceeds to the beneficiary

Front 53

Owner: A Insured: A Beneficiary: A Insured Dies First

Back 53

• Probate property

Front 54

Owner: A Insured: A Beneficiary: B Insured Dies First

Back 54

• Not probate property

Front 55

Owner: B Insured: A Beneficiary: B Insured Dies First

Back 55

• Not probate property

Front 56

Owner: B Insured: A Beneficiary: A Insured Dies First

Back 56

• Probate Estate

Front 57

Owner: B Insured: A Beneficiary: C Insured Dies First

Back 57

• Not probate estate

Front 58

If the insured decedent made herself, her estate, or the personal representative of her estate the policies beneficiary, are the proceeds part of her probate estate?

Back 58

Yes

Front 59

If the beneficiary dies before the insured, and the beneficiary is not the owner of the policy then?

Back 59

There is no property to include in the beneficiary's probate estate

Front 60

If the owner dies before the insured, then?

Back 60

Because the policy is an asset that B owned, it is part of B's probate estate. The policy proceeds are not payable until A dies, so the policy is worth much less than the death benefit. The value included in B's estate will depend on whether the policy is term or whole life and on how long the contract has been in effect.

Front 61

May the owner of an IRA designate one or more beneficiaries to receive the account balance at her death?

Back 61

Yes

Front 62

If the designated beneficiary is not the owner's estate and the designated beneficiary survives the owner, when do the beneficiary's rights to the account assets vest?

Back 62

On the owner's death

Front 63

Are these retirement plans part of the owner's probate estate?

Back 63

NO

Front 64

A retirement plan might be part of the owner's probate estate if

Back 64

1. The designated beneficiary does not survive the account owner
2. The owner named her estate as the plan beneficiary; or
3. The owner failed to designate a beneficiary

Front 65

May the plan documents provide a substitute or default beneficiary?

Back 65

Yes

Front 66

If benefits paid to a survivor are not part of the probate estate, will their value be part of the federal gross estate?

Back 66

Most likely yes

Front 67

Does the owner of an annuity contract have the right to name one or more beneficiaries to receive any value remaining at the owner's death?

Back 67

Yes, and if the designated beneficiary survives the owner, the annuity is not part of the deceased owner's probate estate

Front 68

If the owner fails to designate a beneficiary, names her estate as beneficiary, or all designated beneficiaries fail to survive the owner, then?

Back 68

The annuity may be probate property

Front 69

If the annuity payments are solely for the owner's life, then the amount included in the probate estate reflects?

Back 69

Only payments due but not received before death

Front 70

3 situations where intestate succession arises?

Back 70

When the decedent dies
1. Without having executed a will
2. Having revoked a will; or
3. Having executed a will that was later held to be invalid

Front 71

May a person die partially intestate?

Back 71

Yes, if a will effectively disposes of some probate assets but not others, those other probate assets pass to the decedent's heirs through intestacy

Front 72

Whom is the first taker provided by the intestacy statutes?

Back 72

Surviving Spouse

Front 73

If the surviving spouse is not survived by lineal descendants, how much of the probate estate can they receive through intestacy?

Back 73

100 percent

Front 74

Descendants include?

Back 74

Children, grandchildren, great-grandchildren, great-great grandchildren, etc..

Front 75

If the decedent is survived by descendants, and all of those descendants are also the surviving spouse's descendants, the surviving spouse receives?

Back 75

The first 60,000 and 1/2 of the remaining estate

Front 76

If the decedent is survived by descendants, and at least 1 of them is not a descendant of the surviving spouse, the spouse's share is?

Back 76

1/2 of the probate estate

Front 77

Florida establishes 3 categories regarding the spouse's share
The decedent can be survived by

Back 77

1. A surviving spouse but no surviving descendants
2. A surviving spouse and descendants, all of whom are also the surviving spouse's descendants; or
3. A surviving spouse and descendants, at least one of whom was no a descendant of the surviving spouse

Front 78

The Uniform Probate Code uses 5 categories to determine the surviving spouse's intestate share, the decedent could be survived by:

Back 78

1. A surviving spouse and no parent or descendant
2. A surviving spouse and descendants, all of whom are also the surviving spouse's descendants and the surviving spouse has no descendants who are not also descendants of the decedent
3. A surviving spouse and a surviving parent but no surviving descendants
4. A surviving spouse and descendants who are all also descendants of the surviving spouse, but the surviving spouse has descendants who are not also the decedents descendants
5. A surviving spouse and descendants, at least one of whom is not a descendant of the surviving spouse

Front 79

If a decedent is survived by lineal descendants, what portion of the estate may they receive through intestacy?

Back 79

Whatever portion of the estate that is not allocated to the surviving spouse

Front 80

When do parents receive the intestate descendants probate estate?

Back 80

If an intestate decedent is not survived by either a spouse or lineal descendants, the estate will be distributed to the parents. If both parents survive, then each receive a 1/2 estate. If only 1 parents is alive, then that parent receives the full estate

Front 81

When do Siblings and their Descendents receive the decedents estate?

Back 81

If there is no surviving spouse, lineal descendants or parents, then the brother's and sisters divide the estate

Front 82

What if there is a deceased sibling?

Back 82

If a deceased sibling is survived by lineal descendants, then those descendants take that sibling's share

Front 83

What type of heirs are siblings and their descendants?

Back 83

Collateral heirs

Front 84

2 characteristics of collateral heirs

Back 84

1. They are not the decedents lineal ascendants or descendents
2. They and the decedent share a common ancestor

Front 85

If the decedent has no surviving spouse, lineal descendants, parents, siblings, or siblings descendants, we must look for?

Back 85

Other relatives. Fl. Statute provides for dividing the estate equally between the paternal and maternal kindred

Front 86

Kindred are?

Back 86

Grandparents and their lineal descendants. (does not include great grandparents or any more remote ascendants. Does include aunts and uncles, cousins, and descendants of cousins who are related by blood (not marriage)

Front 87

If there are both paternal and maternal kindred?

Back 87

Each group divides 1/2 of the estate

Front 88

If there is only one group of kindred?

Back 88

That group receives the entire estate

Front 89

In allocating property to paternal or maternal kindred, who gets first?

Back 89

Grandparents. If there is a grandparent, then no other kindred inherit

Front 90

What if there is no grandparent?

Back 90

Then the estate is divided between aunts, uncles, and descendants of deceased aunts and uncles

Front 91

If there are no kindred, what is the last group of individuals who can get before the estate defaults to the State?

Back 91

If the decedent was preceded in death by a spouse, the property goes to the kindred of that deceased spouse. (only those relatives who survive the intestate decedent are entitled to take)

Front 92

Escheat?

Back 92

If the intestate has no survivors who fall into any of the categories above, the property passes to the State of Florida. Qualified heirs can claim the proceeds from the sale of escheated property, but must do so within 10 years

Front 93

What type of intestate distribution scheme does Florida follow?

Back 93

Pure per stirpes system

Front 94

Per stirpes system?

Back 94

The lineal descendants of a deceased heir take that person's share by representation. The estate is divided into as many equal shares as there are:
1. Surviving members in the generation nearest to the decedent
2. Deceased members in the same generation who left suviving descendants
• One share is allocated to each living member in the nearest generation; one share is allocated to each deceased member who left surviving members

Front 95

Difference between per stirpes and per capita?

Back 95

Per capita is basically the same as per stirpes, except that it jumps to the first generation of descendants that contains living members and the first division is made at that level

Front 96

When a child is adopted, what happens to the rights the birth parents have regarding the child?

Back 96

They are terminated

Front 97

Upon being adopted, the child is deemed a lineal descendent of?

Back 97

The adopting parents

Front 98

Can the adopted child inherit from or through the birth parents?

Back 98

Generally no

Front 99

Can the birth parents inherit through from or through the child

Back 99

Generally no

Front 100

Exceptions wherein a child may still inherit from his birth parents and their families, and the birth parents and family may, likewise, inherit from the adopted child even though all other rights were severed?

Back 100

1. Any child may still inherit from a birth parent and that parent's family when that parent's spouse adopted the child
2. A child may inherit from a deceased birth parent's family although the child has been adopted by the widowed parent's new spouse (applies if the adoption occurred after the birth parents death)
3. If a sibling, grandparent, aunt, or uncle adopts an orphaned child, the inheritance rights between the child and the birth family are not terminated

Front 101

What about children born out of wedlock?

Back 101

• Generally there is no question as to the inheritance rights between a child and his mother and her family. Issues arise involving the father's estate and are concerned with proving paternity

Front 102

Several means for establishing inheritance rights between a child and his father and the father's family?

Back 102

1. A child born out of wedlock is the lineal descendant of his father if his birth parents entered into a marriage ceremony, even if the marriage is void
2. A child may inherit from his father and father's family if paternity is established either in court or by the father's written acknowledgment

Front 103

When can adjudication of paternity be established?

Back 103

Before or after the father's death

Front 104

What are afterborn children?

Back 104

A child in gestation at the time of decedent's death. Those children conceived prior to, but born after, a decedent's death.

Front 105

Are Afterborn children eligible to inherit?

Back 105

Yes, Fl. Statute treats those children as if they had already been born at the time of the decedent's death.

Front 106

Are Half Blood relatives treated the same as whole blood relatives under Florida law?

Back 106

No

Front 107

What are half blood relatives?

Back 107

Are heirs related to the decedent through one common parent or grandparent

Front 108

Under Florida Statute, How much are half bloods entitled to receive?

Back 108

Each half blood heir receives only half as much as a whole blood heir.

Front 109

What if only half blood family members survive

Back 109

Then shares are equal

Front 110

What type of compliance does Florida require with its statutes regarding the execution of will?

Back 110

Strict compliance

Front 111

Statutory requirements regarding the execution of wills?

Back 111

1. The will must be in writing (handwritten, typed, or printed)
2. The testator must sign the will at the end of the will
3. The testator must sign in the presence of at least 2 witnesses
4. The witnesses must sign in the presence of the testator and in the presence of each other

Front 112

Does Florida recognize oral wills or non attested wills?

Back 112

No

Front 113

May the testator direct a proxy to sign on his behalf?

Back 113

Yes, but the proxy must sign the testator's name in the testator's presence

Front 114

Does the proxy have to include his or her name in the document?

Back 114

No, but it is advisable to do so

Front 115

If the testator or proxy had signed the will earlier, may the testator later acknowledge to two witnesses that the will had already been signed by himself or the proxy?

Back 115

Yes

Front 116

What two duties do the witnesses have?

Back 116

1. They must actually witness the signing (or acknowledgment of signing) of the will
2. They must sign the will attesting to that fact

Front 117

Whom may qualify as a witness?

Back 117

Anyone competent to be a witness, including beneficiaries

Front 118

How is competency of a witness judged?

Back 118

By the person's ability to understand and be understood concerning the witnessing of the will

Front 119

What are the problems with using beneficiaries of a will as witnesses?

Back 119

Other beneficiaries or potential beneficiaries may challenge the will on the grounds that the interested witness unduly influenced the testator.

Front 120

If the undue influence challenge can be avoided, what other challenge may be used?

Back 120

The fact that the beneficiaries self-interest affects his or her credibility as a witness to the execution of the will

Front 121

What are the consequences when a will is lost and there are no disinterested witnesses?

Back 121

It will be impossible to establish the lost will's terms

Front 122

What does it mean that the will must be signed at the "end"?

Back 122

The Florida Probate Code does not define what is meant by the end, but Common Law decisions have stated that the end refers to the logical end -- after dispositive provisions and administrative provisions of the will -- rather than its physical end

Front 123

2 Tests used to determine whether the will was signed "in the presence" of the testator

Back 123

1. Line of vision test
2. Conscious presence test

Front 124

Line of vision test?

Back 124

• Requires that each "party is capable of seeing the other in the act of signing"
• The testator does not actually have to see the witness sign, but must be able to see if the testator were to look at the witnesses in the act of signing (testator can blink or close is eyes, but there must not be something blocking his view) Furthermore, the testator must not look away so that he is out of the line of sight and unable to see)

Front 125

Conscious presence test?

Back 125

• Requires only that a party mentally perceive that another is signing, without the need to actually be capable of seeing the other person
• The test is met if the person can sense the presence of another, without seeing him, such that he knows that the other is signing
• The relevant party must know that the other is signing

Front 126

Example of Conscious Presence Test

Back 126

• If a testator can from his position in the room only see the back of the witness, but can hear the papers rustling, the act should be accepted. Similarly, if there is a desk blocking the testator's view but the testator otherwise can tell that the witnesses are signing, the conscious presence test is probably met.

Front 127

Which test have Florida courts indicated should be followed to comply with Fl statute?

Back 127

Neither. Attorney's should follow the line of vision test to assure the executed document will be admitted to probate

Front 128

Are testimonium and attestation clauses required in the will?

Back 128

No

Front 129

What may a testimonium clause look like?

Back 129

In Witness Whereof, I have ……

Front 130

What is an attestation clause?

Back 130

It states the basic facts that occurred during execution of the will. It may also include other matters, such as the number of pages to the will.

Front 131

What is a self-proof affidavit?

Back 131

It is sworn testimony that the execution of the will comported with Florida law

Front 132

Who must sign a self-proof affidavit?

Back 132

Both the testator and witnesses sign the self-proof affidavit

Front 133

When does Florida Statute require that this affidavit be signed if used?

Back 133

It may be signed at the time of will execution or at a later date

Front 134

What must a court ensure to enter a will into probate?

Back 134

That it was executed with the formalities required by Florida Law

Front 135

How does a court ensure a will was executed with the formalities required by Florida law?

Back 135

The court requires sworn testimony of the witnesses as to the will's execution. If the witnesses are not available, then the personal representative or a disinterested party may swear that he believes that the will was the decedent's

Front 136

How does a self-proof will (one with a self-proof affidavit) make the process of admitting the will to probate easier?

Back 136

A self-proof will may be admitted to probate without sworn testimony of witnesses or the personal representative

Front 137

When should a self-proof affidavit be executed?

Back 137

At the same time the will is executed

Front 138

Does Florida law require that the testator publish his will by declaring to the witnesses that the instrument is his will?

Back 138

NO

Front 139

Does Florida Law require that in the case of a self proof will, the testator declare that the instrument is his will?

Back 139

Yes

Front 140

3 steps should an attorney take to reduce the possibility that someone will substitute pages in the will with different dispositive provisions at some future date?

Back 140

1. Use a page numbering system that indicates not only the particular page but how many pages there are ( page 8 of 11)
2. Ask the testator to sign or initial each page
3. Staple and bind the will together

Front 141

Age requirements of the testator?

Back 141

To execute a valid will, the testator must be at least 18 years old, or an emancipated minor

Front 142

Does a will executed by an unemancipated minor become valid when the minor becomes emanciapted or reaches the age of 18 before dying?

Back 142

No

Front 143

2 ways a minor become emancipated?

Back 143

1. By marriage - the minor retains that status even if the marriage ends in divorce or the spouses death
2. A minor who is at least 16 years old can also become emancipated if the court grants a petition for emanicpation

Front 144

In addition to meeting the age requirement, the testator must also be of _________ when the will is executed

Back 144

Sound Mind (must have testamentary capacity)

Front 145

What is the presumption of testamentary capacity?

Back 145

Every person is presumed to have testamentary capacity and the burden of proof is on a will contestant to show that the testator lacked such capacity

Front 146

What if the testator was of sound mind at the moment the will was executed, and subsequently found to lack capacity?

Back 146

Subsequent incapacity is irrelevant

Front 147

Factors used to determine whether the testator had capacity at the time the will was created?

Back 147

Whether the testator knows
1. The nature and extent of the property to be disposed of
2. The testator's relation to those who would naturally claim a substantial benefit from his will
3. A general understanding of the practical effect of the will as executed

Front 148

Insane delusions?

Back 148

A spontaneous conception and acceptance of fact, of that which has no real existence except in imagination. The conception must be persistently adhered to against all evidence and reason, having no foundation in reality

Front 149

May a testator have testamentary capacity but still be susceptible to the influence of another person?

Back 149

Yes

Front 150

When is influence considered to be "undue"?

Back 150

If the influence destroyed the testator's free agency and substituted another's volition for that of the testator

Front 151

Generally, 3 factors must be established to determine if there was undue influence?

Back 151

1. There was influence exerted on the testator
2. The effect of the influence was to overpower the testator's free agency; and
3. The product of the influence was a will (or portion thereof) that would not have been executed but for the influence

Front 152

The person contesting a will on the basis of undue influence can show that their was undue influence, they must then establish that the beneficiary

Back 152

1. Was a substantial beneficiary
2. Occupied a confidential relationship with the testator
3. Was actively involved in procuring the will

Front 153

What if the entire will was the product of undue influence?

Back 153

Then the entire will is void

Front 154

What if only a portion of the will was a product of undue influence?

Back 154

Then only that portion is void. The remaining portions will be valid unless the court invalidates them for other reasons

Front 155

What is a substantial beneficiary?

Back 155

Someone who received a substantial or unnatural devise

Front 156

When is a devise considered unnatural?

Back 156

When the beneficiary received significantly more
1. Than he would have received under intestacy
2. In comparison to others in the same degree of relationship to the testator
3. Than was provided to him in previous wills

Front 157

People who may have confidential relationships with the decedent? (partial list of 5)

Back 157

1. Family members
2. Physicians
3. Attorneys
4. Religious advisors
5. Household employees

Front 158

May undue influence be claimed even if the persons exercising undue influence did not directly benefit?

Back 158

Yes, if they benefited indirectly

Front 159

7 Factors that are examined to determine whether a beneficiary was active in procuring the will

Back 159

1. Presence of the beneficiary at the execution of the will
2. Presence of the beneficiary on those occasions when the testator expressed a desire to make a will
3. Recommendation by the beneficiary of an attorney to draw the will
4. Knowledge of the contents of the will by the beneficiary prior to execution
5. Giving of instructions on preparation of the will by the beneficiary to the attorney drawing the will
6. Securing of witnesses to the will by the beneficiary
7. Safekeeping of the will by the beneficiary subsequent to execution
• Do not have to prove all factors

Front 160

Proceedings to remove a personal representative and for revocation of probate of a will are considered?

Back 160

Adversary proceedings

Front 161

Who has standing to contest a will?

Back 161

Any interested person may petition for revocation of probate

Front 162

What does the term "interested person" mean?

Back 162

Any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved

Front 163

Must the issue of standing be specifically plead as an affirmative defense, and therefore waived if not plead?

Back 163

No

Front 164

Doctrine of Dependant Relative Revocation

Back 164

Creates a rebuttable presumption that the testator would have preferred to revive his earlier bequests rather than let the property go by intestacy

Front 165

2 presumptions that form the basis of the Doctrine fo Dependant relative Revocation

Back 165

1. The testator did not intend to die intestate
2. The testator intended that the revocation of the prior will is conditionally qualified on the validity of the subsequent will (the testator prefers the prior disposition of the new one fails for any reason)

Front 166

Two Types of Fraud as it pertains to wills

Back 166

1. Fraud in the inducement
2. Fraud in the execution

Front 167

Fraud in the execution occurs when

Back 167

1. The document has been switched or deliberately altered
2. When the testatrix is misled as to the type of document she is signing

Front 168

If a person intentionally misled the testatrix as to the contents of the will, or switched the pages before the will was executed, what may that person have committed?

Back 168

Fraud in the execution

Front 169

What distinguishes fraud in the execution from mistake?

Back 169

The intent to deceive

Front 170

If the testator was intentionally misled through lies into forming a testamentary intent that he would otherwise not have formed, the lie may constitute?

Back 170

Fraud in the inducement

Front 171

What happens when the entire will has been obtained by fraud?

Back 171

The entire will is void

Front 172

If the offending conduct affects only a part of the will?

Back 172

Only the part of the will affected by fraud is void

Front 173

What if voiding the will or voiding the offending part of the will does not provide sufficient relief?

Back 173

The intended beneficiary may ask the court to impose a constructive trust on the testatrix's assets for her benefit

Front 174

Example of Voiding not being sufficient

Back 174

• The testatrix believed she had executed a will favoring her friend Agatha but a page had been fraudulently switched before she signed it. In such a case, Agatha could ask a court to impose a constructive trust

Front 175

Is frustration through fraud, duress, coercion, or deception of a mere intent to revoke a will sufficient to impress a trust on the devise?

Back 175

No, frustration of an intent to destroy a will is not enough to render the will void and make a constructive trust. It must be frustration of an attempt to destroy the will.

Front 176

What happens to a will executed under duress?

Back 176

It is void

Front 177

Contests based on "mistake" include?

Back 177

The decedent's execution of one instrument under the belief that he or she was executing another (this will would be void because the testator would have lacked the testamentary intent to execute a valid will)

Front 178

What are some situations that do not constitute "mistake"?

Back 178

1. A mistake in the decedents understanding of a factual situation (similar to a mistake in inducement)
2. A mistake in wording
3. A mistake in drafting of the will

Front 179

Because mistake and fraud are governed by the same statute, it is possible by analogy, that fraud in the inducement (as opposed to fraud in the execution) would?

Back 179

Not void a will

Front 180

What is the effect of striking all or part of a will?

Back 180

The probate court eliminates the devise that was wrongfully obtained.

Front 181

Does the striking of all or part of a will because of wrongdoing reinstate a devise that allegedly would have been included but for the wrongdoing?

Back 181

No, and in such cases the harmed party can seek relief in the form of a constructive trust by permitting the fraudulent gift to stand and holding the defrauder, to whom legal title passes, as a constructive trustee for the victim of the fraud, or by seeking an action at law for damages against the defrauder.

Front 182

Does Florida allow "In Terrorem" clauses, which allow a testator to disinherit a beneficiary who contests a will?

Back 182

No, a provision in a will purporting to penalize any interested person for contesting the will or instituting other proceedings relating to the estate is unenforceable

Front 183

Does the Uniform Probate Code allow "In Terrorem" clauses?

Back 183

Yes, but only if there is no "probable cause for instituting proceedings to contest the will"

Front 184

What is Spoliation?

Back 184

A post-execution change in the will by an unauthorized third person

Front 185

Is Spoliation a form of tortious interference?

Back 185

Yes

Front 186

2 Reasons why Spoliation receives different treatment than tortious interference?

Back 186

1. If the original will terms can be established, there may be an adequate remedy in probate
2. It provides an opportunity for you to think about steps an attorney can take to prevent spoliation

Front 187

When does Tortious Interference arise?

Back 187

When 1 party convinces a testator to devise property in a manner that deviates from the expectations of family members or other potential devisees

Front 188

Why is it important to distinguish between tortious interference claims and claims of fraud, mistake, and undue influence?

Back 188

Because the remedies are different. In situations of fraud, mistake, and undue influence, Florida statute voids any part of the will attributable to the prohibited behavior. As a result, devises may go to residuary takers or property may pass by intestacy or under prior wills

Front 189

Can a suit for tortious interference be pursued if adequate relief is available in a probate proceeding?

Back 189

No, the remedy in a probate proceeding must be exhausted before a tortious interference suit can be brought.

Front 190

Types of actions that would support an action for Tortious interference?

Back 190

1. Undue influence
2. Destruction of a will (etc..)
3. Changes to a dispositive scheme
• There must be no remedy available through probate

Front 191

When a decedent who has made a will dies and the will cannot be found, what presumption arises?

Back 191

That the decedent herself destroyed the will, intending to revoke it

Front 192

Is the presumption rebuttable?

Back 192

Yes

Front 193

If a will has been maliciously destroyed, what two procedures are potentially available to rectify the situation under Florida Law?

Back 193

1. A petition under Florida probate code to establish the contents of the destroyed will
2. An action for tortious interference with a testamentary expectancy

Front 194

4 Elements necessary for the tort of intentional interference with an expectancy

Back 194

1. The existence of an expectancy
2. Intentional interference with the expectancy through tortious conduct
3. Causation
4. Damages
• Remedies available through probate must be exhausted or non-existent

Front 195

If a testator is satisfied with most of a will's provisions but wants to make a minor change, what can he do?

Back 195

Add a codicil

Front 196

What is a codicil?

Back 196

A testamentary instrument ancillary to a will that adds to, varies, or revokes provisions in the will

Front 197

Must a codicil be executed with the same formalities as a will?

Back 197

Yes

Front 198

Can a testator use the self-proof process for a codicil?

Back 198

Yes

Front 199

2 ways by which a testator can revoke a will or codicil?

Back 199

1. By subsequent writing
2. By physical act

Front 200

Must the testator have testamentary capacity at the time of revocation or amendment?

Back 200

Yes, this is true whether the testator revokes by writing a new which expressly revokes the old will and whether the testator physically destroys a will

Front 201

May a revocation of a will be accomplished by any writing?

Back 201

Yes, it need not necessarily be a new will or codicil. In the subsequent writing, the testator must sign the document at the end in the presence of two witnesses, and the witnesses must sign the document in the presence of the testator and each other.

Front 202

What must the language of a subsequent writing state in order to revoke a prior will?

Back 202

It must indicate that it "revokes all prior wills" or " I revoke my will dated _____"

Front 203

Must a testator who uses a subsequent writing to revoke a will revoke the entire will?

Back 203

No, the testator can use this method to revoke an entire will or part of a will

Front 204

What if a testator's will makes no mention of any earlier will?

Back 204

If both wills are valid but have inconsistent terms, the later will revokes the prior inconsistent terms. It does not revoke the entire will, only to the extent of the inconsistent terms.

Front 205

What ways does the Florida Statutes allow for the physical destruction of a will?

Back 205

1. Burning, tearing, canceling defacing, obliterating, or destroying will effect a revocation if the testator intended this result by that act
• The testator must have intended that the will be revoked

Front 206

Can a testator use subsequent "physical acts" to amend or revoke part of a will?

Back 206

No, a will that is revoked by subsequent act is completely revoked

Front 207

May a testator direct that another person act on the testator's behalf when physically revoking a will?

Back 207

Yes, but the person must perform the act in the testator's presence

Front 208

Does a change in the testator's family status, such as getting married or divorced, revoke a will?

Back 208

No, those changes may affect only particular devises, but the remaining will stays intact

Front 209

If a testator uses a valid second will to revoke his first will, will the first will remain revoked if the testator later revokes the second will?

Back 209

Yes, and it does not matter whether the original will was destroyed or still exists

Front 210

If a testator revokes a will, does he revoke all codicils to that will?

Back 210

Yes

Front 211

If the testator used a codicil to revoke part of a will or codicil and he later revokes that later codicil, does it have the effect of reinstating the earlier portion of the revoked will or codicil?

Back 211

The earlier provisions remain revoked only if there is evidence that the testator did not intend to revive them

Front 212

If a will has been revoked or if it is invalid for any other reason, may it be revived by execution of a codicil refering to the previous will?

Back 212

Yes, it may be republished and made valid by its reexecution or the execution of a codicil republishing it with the formalities required for the execution of wills

Front 213

What presumption arises when a will is found to be in torn or mutilated condition?

Back 213

That the testator tore or mutilated the will with the intent to revoke it

Front 214

Can the presumption be rebutted?

Back 214

Yes, by substantial evidence or competent testimony that the testator lacked the intent to revoke the will

Front 215

Is a testator's attempt to revoke portions of a will by lining through the name of the personal representative, placing the word delete over certain paragraphs in the will, and placing his signature with the words "please draw up a new will making changes noted here" sufficient to revoke the will?

Back 215

Probably Not, and definitely No if he failed to comply with statutory requirements

Front 216

Is the testator's destruction of a copy of a will or codicil, on the assumption that it was the original, enough for revocation?

Back 216

No, testator needs both the original copy + the intent to revoke

Front 217

Do testator's who devise fixed percentages or fractional shares of their property (25% or 1/4) have to revise their wills every time they acquire or dispose of property?

Back 217

No, If the personal representative is able to sell property and distribute money to the devisees, it does not matter what the decedent owns at death as the percentage or fractional share will remain the same.

Front 218

Can a testator refer to a pre-existing writing and incorporate it by reference into his will?

Back 218

Yes, the but the will must clearly indicate the testator's intent to incorporate the document and describe thee writing well enough to allow its identification. (merely just mentioning the other document is not sufficient)

Front 219

May a testator dispose of property based on acts and events rather than based on a devise in the testator's will?

Back 219

Yes, but the acts and events must have independent significance other than their effect on the dispositions made by the testator's will. (ex. Testator's will includes a devise of "my car to my Nephew Ned". On the date the will was executed, the testator owned a Buick. When Testator died he owned a BMW. Ned will receive the BMW)

Front 220

May the testator devise property to the trustee of a trust?

Back 220

Yes, the trust must exist when the will is executed, or the two documents must be executed concurrently

Front 221

Is a devise to a trust valid even if the trust is revocable or is amended after the will's execution?

Back 221

Yes, but if the trust is revoked in its entirety before the testator's death, the devise to the trust will be invalid.

Front 222

Does Florida Statute allow a testator to distribute tangible personal property that is not used in a trade or business and not otherwise specifically devised in the will by making a list of such property and the intended recipients?

Back 222

Yes, and the testator can change the list or make multiple lists. If the multiple lists do not conflict, the are all valid. If the multiple lists conflict, the last list governs.

Front 223

What does Florida statute require of the testator when making these lists?

Back 223

1. The testator must sign each list
2. The property and recipients must be described with reasonable certainty
3. The testator's will must refer to the possible existence of such a list

Front 224

Dependant relative revocation

Back 224

Where a testator makes a new will revoking a former valid one, and it later appears that the new one is invalid, the old will may be re-established on the ground that the revocation was dependant upon the validity of the new one, testator preferring the old will to intestacy

Front 225

What does Dependant relative revocation require?

Back 225

• A finding that the decedent preferred a revoked will to the intestacy that results from the current invalid will
• Never applies if the decedent never had a prior will or if the prior will was never properly revoked
• The new invalid will must have been made specifically to revoke the prior will. The original will cannot be destroyed, and then some months later a new will made. It had to be the intent of the testator to make the new will to revoke the prior
• The provisions of the invalid will are not materially different from the prior will

Front 226

When will a court find that the doctrine of dependant relative revocation applies?

Back 226

There must be evidence based on the decedent's previous testamentary scheme that he would rather die testate. So if the invalid will is markedly different from the revoked will, the court will probably decide the decedent would have preferred intestacy to the provisions of the revoked will.

Front 227

Does the doctrine of dependant relative revocation apply to an invalid portion of a will?

Back 227

No, generally the doctrine is applied only to an entire will. There have been some exceptions applied to charitable devises

Front 228

2 challenges lost wills present?

Back 228

1. Establishing the terms of the will
2. The presumption that the will is missing because the testator acted with purpose and intent of revoking the will

Front 229

If it is determined that the testator intentionally destroyed the will so that it cannot be found, and the doctrine of dependant relative revocation does not apply, the will?

Back 229

Cannot be probated

Front 230

When will a court likely find that the presumption that a lost will was intentionally destroyed by the testator has been rebutted?

Back 230

Usually only when persons who would benefit by the will's destruction had access to the will and the opportunity to take or destroy it

Front 231

How may the terms of a lost will be proved?

Back 231

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

Front 232

How does Florida construe the term "correct copy" when proving a lost will?

Back 232

A correct copy means a copy conforming to an approved or conventional standard and that this requires an identical copy such as a carbon or photostatic copy. Cannot be a previous draft of the will

Front 233

Can a draft ever be used to prove a will?

Back 233

Yes, but it would have to be accompanied by the testimony of 2 disinterested witnesses

Front 234

What if a will or codicil is found after administration of the estate has commenced?

Back 234

The document may be admitted to probate upon petition by any interested person

Front 235

What if a will or codicil is found and the estate has been fully administered and closed?

Back 235

The administration will not be reopened and the discovered will or codicil cannot be probated. The interested party might be able to bring a civil action for tortious interference with inheritance, if the will was intentionally withheld from probate.

Front 236

What controls the legal effect of the testator's dispositions?

Back 236

The intention of the testator

Front 237

2 types of ambiguity in wills?

Back 237

1. Latent
2. Patent

Front 238

Latent ambiguity?

Back 238

• Ambiguity is one that is not ascertainable from a reading of the will. It comes to light when the administrator seeks to carry out its terms

Front 239

Patent ambiguity?

Back 239

Ambiguity is obvious from the face of the document

Front 240

What can a court do if a will contains an ambiguity or mistaken description?

Back 240

A court can consider evidence of the testator's intent to resolve the ambiguity or correct the description

Front 241

If a particular ambiguity involves two beneficiaries, only one of whom is arguably the correct beneficiary, what may the potential beneficiaries do?

Back 241

They may agree to share the devise rather than risk losing it entirely

Front 242

Simultaneous Death Law

Back 242

As a general rule, if there is insufficient evidence to determine that the decedent and the beneficiary did not die simultaneously, the beneficiary is treated as having died first

Front 243

Lapse and Antilapse

Back 243

As a general rule, a devise to an individual who is either the testator's grandparent or a descendant of one of the testator's grandparents does not lapse even if the devisee predeceases the decedent. Instead, the devisee's descendants receive the property. If the devise had been to any other person, it lapses instead of going to the devisee's descendants

Front 244

Failure of testamentary Provision

Back 244

Unless the antilapse provision applies, a failed non-residuary devise becomes part of the residue and goes to the residuary devisees. If there is more than one residuary taker, and a devise to one of them fails, the other residuary takers share the failed devise in proportion to their interests in the residue

Front 245

Changes in securities

Back 245

If there is a specific devise of certain securities rather than the value of those securities, the devisee is entitled to the devised securities still owned at death, plus any additional securities the testator received becausee of action initiated by the entity issuing the securities, plus securities received as a result of a merger or similar action, plus securities received as part of a plan of reinvestment

Front 246

Nonademption of Specific Devises

Back 246

If property has been sold by a testator's guardian, the devisee is generally entitled to the net sales proceeds. Similar rules apply to condemnation proceeds and proceeds of insurance policies. If the testator was the seller, the devisee is entitled to any unpaid balance of the purchase price, condemnation or insurance proceeds, and property taken in foreclosure or in lieu of foreclosure of a specifically devised obligation

Front 247

Exercise of power of appointment

Back 247

If the testator had a testamentary power of appointment, a general residuary clause that does not mention the power is not an exercise of the power unless there is some other indication of the testator's intent that the residuary clause included the property subject to that power

Front 248

Generic Terms

Back 248

Class gifts and gifts based on relationship are deemed to include individuals who are adopted or who are born out of wedlock based on the rules applicable to intestate succession

Front 249

Ademption by Satisfaction

Back 249

A transfer made to a devisee before the testator's death is not treated as made in satisfaction of a devise to that devisee unless there is a writing to that effect

Front 250

Statutes include other rules that the testator can alter including

Back 250

1. Apportionment of estate taxes
2. Determining if the devisee of encumbered property takes that property subject to the debt
3. Reducing the value of devises to pay debts, family allowance, elective share, and other charges owed by the estate

Front 251

If there are two conflicting portions of the will that cannot be read together, which one controls?

Back 251

The latter provision

Front 252

Can extrinsic evidence be used to clear up patent and latent ambiguities

Back 252

Yes

Front 253

4 types of devises

Back 253

1. Specific
2. Demonstrative
3. General
4. Residuary

Front 254

Devises that are reduced because estate assets are needed for other purposes are said to ?

Back 254

Abate

Front 255

Ademption is relevant when?

Back 255

An estate does not won a particular item of property devised in the testator's will

Front 256

When does lapse occur?

Back 256

Occurs when the property is part of the probate estate but the devisee does not survive the decedent's death or other event that vests the devisee's right to the property

Front 257

When does Abatement and ademption occur?

Back 257

When the devisee survives but the estate is insufficient to fund all devises or a particular item of property is not part of the probate estate

Front 258

Specific devise

Back 258

• A devise of property which is particularly designated and which is to be satisfied only by the receipt of the particular property described
• The devise can be of a specific item of property or of a specific type of property

Front 259

Example of Specific Devise

Back 259

• A devise of "my property, Greenacre, located at 321 Main Street"

Front 260

Demonstrative devise

Back 260

A devise of a fixed amount payable from a particular fund or from the proceeds of the sale of an item

Front 261

Two elements essential to a demonstrative bequest

Back 261

1. It must be an unconditional gift in the nature of a general bequest
2. Must indicate the fund or property out of which it is to be satisfied

Front 262

Example of Demonstrative devise

Back 262

"I devise 100,000 to Ed, payable first from my account at the First national Bank" Even though testator specifies the initial source to be used (FNB), the devise is unconditional, so Ed will receive his devise even if there is no money in FNB when testator dies.

Front 263

In demonstrative devises, what if the fund specified to cover the devise is insufficient?

Back 263

Fl. Statute provides that the devise is treated as general to the extent of the insufficiency

Front 264

General devise

Back 264

Neither specific nor demonstrative, but which indicate a particular amount to be received

Front 265

Example of General devise

Back 265

"I devise 50,000 to Jim"

Front 266

How is a general devise payable?

Back 266

It is payable from any estate asset or fund other than one required to pay specific or demonstrative devises

Front 267

Can general devises be of property other than money?

Back 267

Yes

Front 268

Does the testator have to own the property at death when creating a general devise?

Back 268

No, Example: "I devise 100 shares of ABC Corporation stock to my granddaughter, Sue, which my personal representative shall purchase with estate assets" -- this is a general devise

Front 269

Residuary devises

Back 269

Are gifts of whatever probate assets have not been devised by specific, demonstrative, or general devises

Front 270

Example of Residuary Devise

Back 270

"I devise all the rest, residue, and remainder of my estate in 7 equal shares to Charities A, B, and C and to my 4 children"

Front 271

Between the time that a will is executed and the testator dies, what events might affect the composition of the probate estate?

Back 271

1. Medical costs
2. Post-death events
3. Creditors
4. Costs of administration
5. Federal taxes
6. Pretermitted shares
7. Elective share

Front 272

If the estate is inadequate to pay all claims and expenses that are superior to devises, what happens to the devises?

Back 272

They are eliminated

Front 273

If the estate is too small to pay all of the claims after the devises have been eliminated, what happens?

Back 273

The creditor claims will go unpaid

Front 274

Can a testator include abatement rules in the will?

Back 274

Yes, the testator can provide a general order of abatement or can limit abatement to particular assets or devisees, and in that case the abatement rules set forth in the will control

Front 275

What if the will is silent as to the rules of abatement?

Back 275

Then Fl. Statutes control

Front 276

What is the order in which assets abate?

Back 276

1. property passing by intestacy
a. Property might pass by intestacy if the will's dispositive clauses do not cover all of the testator's property and the will has no residuary clause
b. Property also might pass by intestacy if there is a residuary clause but the residuary clause fails because the devisee predeceases the testator and the will does not provide for an alternate taker
2. property devised to the residuary devisee or devisees
a. Includes all property that falls into the residue because a specific, demonstrative, or general bequest fails
3. property not specifically or demonstratively devised (general devise)
4. property specifically or demonstratively devised
• Homestead is not subject to abatement if the property retains it's homestead status

Front 277

What is the priority of claims against the estate?

Back 277

Fl. Statute assigns claims against the estate to a series of 8 classes

Front 278

What if assets are insufficient to cover all claims within a single class?

Back 278

Creditors in that class receive only partial payment and those in the lower classes receive no payment at all. Partial payment is proportional to the amount of the total claims in the particular class

Front 279

What are Class 1 claims?

Back 279

Those related to the expenses of estate administration

Front 280

What are Class 2 claims? What is the maximum dollar amount that can be treated as a class 2 claim?

Back 280

Are expenses of the decedents funeral, including grave marker. A maximum of 6,000 can be treated as a class 2 claim

Front 281

What are class 3 Claims?

Back 281

Those debts and taxes that have preference under federal law and certain other claims such as those for recoupment of medicaid benefits

Front 282

What are class 4 claims?

Back 282

Relate to the last 60 days of the decedent's final illness

Front 283

What are class 5 claims?

Back 283

Cover family allowance to maintain certain family members during the estate's administration. Family allowance is currently capped at 18,000

Front 284

What are class 6 claims?

Back 284

Any court ordered child support

Front 285

What are class 7 claims?

Back 285

If the decedent's business is continued during the estate's administration, business debts incurred during administration are class 7 claims but cannot exceed the amount of the business assets

Front 286

What are class 8 claims?

Back 286

All other claims against the estate

Front 287

What if the claimants want money rather than payment in other assets?

Back 287

The personal representative has the power to dispose of estate assets (liquidate) subject to limitations that may be imposed in the decedent's will (cannot liquidate specific devises if there are other general assets available)

Front 288

May assets owned by a revocable trust be taken to satisfy claims?

Back 288

Yes, but only if the decedent's estate is insufficient to satisfy the claims and devises other than residuary devises. Fl stat. provides that the trustee of such a trust has a duty to pay the personal representative any amounts the personal representative certifies as required to pay expenses of administration of the estate

Front 289

When does abatement occur?

Back 289

When there is not enough probate property to satisfy various claims and expenses or to fund all devises

Front 290

What is ademption by extinction?

Back 290

Applies because a particular asset is not part of the decedent's probate estate
Ex. The decedent may have owned it when the will was executed and disposed of it later

Front 291

Ademption by satisfaction

Back 291

Applies if the devisee previously received the particular property or a substitute and the receipt was meant to satisfy the devise

Front 292

If the testator did not own property devised in the will at the time of his death, and the devisee did not receive it by inter vivos gift, what happens to the devise? (3 possibilities)

Back 292

1. The devisee is entitled to the property and the personal representative must acquire the property for this purpose
2. The devisee is entitled to receive some other property
3. The devisee is not entitled to receive anything

Front 293

How do you determine which possibility to use? (2 factors)

Back 293

It depends on
1. The type of devise (must be specific)
2. The reason the property is not part of the estate (disposition by guardian or disposition by decedent)

Front 294

What if the specific devise was disposed of by a guardian?

Back 294

Fl. Stat. prevents ademption of specifically devised property in situations where 1) the guardian sells the incapacitated person's assets to provide for his day to day needs and 2) if the property is damaged or condemned and the guardian receives insurance proceeds or a condemnation award, therefore, the devise gains the right to a general pecuniary devise equal to the net sale price, condemnation award, or insurance proceeds

Front 295

What if the specific devise was disposed of by a guardian, but later the guardian is no longer necessary because the incapacitated person is adjudicated to no longer be under a disability?

Back 295

In this case, if the testator lives at least 1 year following this adjudication, the devisee is not entitled any substituted gift

Front 296

What if the specific devise was disposed of by decedent (The testator is the person who sells the property, or receives proceeds after it is condemned or damaged)

Back 296

The devisee has the right to any remaining specifically devised property, also the right to:
1. Any unpaid purchase price and security interest if the testator sold the property before death
2. Any unpaid part of the condemnation award
3. Any unpaid insurance proceeds
4. Property owned because the testator foreclosed on property covered by a specifically devised obligation or took property in lieu of foreclosure
• If testator received full payment prior to death, then the devisee receives nothing

Front 297

Are general and residuary devises subject to ademption by extinction?

Back 297

No, because they do not involve particular estate assets

Front 298

What about demonstrative devises?

Back 298

They are not subject to ademption by extinction because they are converted to general devises to the extent that the particular fund does not exist

Front 299

What is the only type of devise subject to ademption by extinction?

Back 299

Specific devises

Front 300

If the devise is of securities and the testator has disposed of a portion of them before dying, what is the devisee entitled to receive?

Back 300

The securities remaining in the estate

Front 301

If the devise is of securities and the corporation issued a stock dividend or split its stock, what is the devisee entitled to?

Back 301

The original devise plus the additional shares

Front 302

If the devise is of securities and the owner decides to purchase additional shares, what is the devisee entitled to?

Back 302

The owner is only entitled to the shares devised in the will

Front 303

If a corporation merges into another or undergoes some other corporate reorganization, is the specific devisee entitled to shares of the second entity?

Back 303

Yes, because the action was initiated by the entity and not the owner.

Front 304

If a gift of property is encumbered, who pays?

Back 304

The beneficiary must pay off the debt unless the will has a provision that specifically shows that it was the testator's intent to pay off the debt with the residuary

Front 305

Where does the federal estate tax computation begin?

Back 305

With the decedent's gross estate

Front 306

What does the gross estate include?

Back 306

1. Probate assets
2. Non-probate assets
3. Survivorship property
4. Revocable trusts
5. Income interests in property transferred before death
6. Property over which the decedent held a general power of appointment

Front 307

What is the federal estate tax imposed on?

Back 307

The taxable estate

Front 308

What is the taxable estate?

Back 308

Is the amount of the gross estate that remains after the it is reduced by allowable deductions

Front 309

3 of the most important deductions allowed are for?

Back 309

1. Transfers to surviving spouse
2. Transfers to charity
3. Payment of various obligations (debts and expenses of administration)

Front 310

Before apportioning taxes, what must the personal representative do first?

Back 310

Ascertain if any assets are exempt from apportionment

Front 311

Before apportioning taxes, what must the personal representative do second?

Back 311

Must determine the relative apportionment rules

Front 312

What are the 3 sources for the relative apportionment rules?

Back 312

1. The governing instrument
2. The internal revenue code
3. The florida statutes

Front 313

What does the florida statutes apportion taxes between?

Back 313

Probate and nonprobate assets

Front 314

Where do tax apportionment rules take from first?

Back 314

The residuary devise

Front 315

Do the tax apportionment rules give specific or demonstrative devises priority over general devises?

Back 315

No, if the residue is insufficient, the other devises contribute to the estate based on the value included in computing the estate tax

Front 316

Can the statutory apportionment rules be changed by the testator?

Back 316

yes by direction in the governing instrument (will or trust)

Front 317

Do marriage, birth, or adoption revoke a will?

Back 317

No

Front 318

When a testator marries after making a will, florida statute allows the surviving spouse to claim the equivalent of an intestate share of decedent's probate property unless 1 of 3 exceptions apply. The exceptions are:

Back 318

1. Provision has been made for, or waived by the spouse by prenuptial or postnuptial agreement
2. The spouse is provided for in the will
3. The will discloses an intention not to make provision for the spouse

Front 319

What if a person is named in the will but was not married to the decedent at the time the will was created. Later that person married the decedent. Does the provision in the will disqualify the surviving spouse from claiming pretermitted status?

Back 319

Fl. SC held that when a will executed before marriage contains a provision for a named individual who later becomes the testator's spouse, the surviving spouse has the burden of proving that the provision was not made in contemplation of marriage

Front 320

If a will indicates a disinheritance of a future spouse, may a spouse claim to be pretermitted status?

Back 320

no

Front 321

May a testator include a provision in his will that the will is being made in contemplation of marrying a specific person, or anyone, and that he is intentionally omitting any provisions for any future spouse even if they are married when he dies?

Back 321

yes

Front 322

May the testator's intent to omit any future spouse be implied from the will?

Back 322

yes

Front 323

What share does a pretermitted spouse receive?

Back 323

The share of the decedent's estate that they would have received if the decedent died intestate

Front 324

When is the share of a pretermitted spouse calculated?

Back 324

After reducing the probate estate by debts, costs of administration, and an appropriate share of taxes

Front 325

What is the effect on other devises if a pretermitted spouse receives property?

Back 325

One or more other devises lose part of their devises. Unless the will provides a different rule for abatement, statutory abatement applies

Front 326

Does florida statute allow for pretermitted children?

Back 326

Yes, to be eligible, the child must have been born or adopted after the will was executed and must not have received their share as an advancement.
* It must also not appear from the will that the omission was intentional

Front 327

For children to be eligible for pretermitted status, what are the requirements?

Back 327

1. The child must have been born or adopted after the will was executed
2. The child must not have received their share of the estate as an advancement
3. It must not appear in the will that the omission was intentional

Front 328

If the testator had one or more children when the will was executed and devised substantially all the estate to the other parent of the child seeking pretermitted status, if the surviving spouse is entitled to take under the will, should pretermitted status for the child be granted?

Back 328

no

Front 329

Is a child born after the execution of a parents will but before the execution of a codicil to the will eligible for pretermitted status?

Back 329

No, cause the child is living when the codicil republished the will

Front 330

What happens if a testator fails to amend a will following divorce or annulment?

Back 330

The will is administered as if the former spouse died when the divorce or annulment occurred and the provisions benefiting them become void

Front 331

Two exceptions to the general rule that a divorce or annulment render the former spouses provisions in the will void?

Back 331

1. If the will contains provisions indicating that the devise is to be valid notwithstanding divorce (must be expressly provided); OR
2. If the dissolution or divorce judgment contains such language

Front 332

If ex-spouses remarry each other, does their remarriage revalidate the provisions that were voided by the prior dissolution?

Back 332

no

Front 333

In a situation where ex-spouses remarried each other but never made a new will because they thought the provisions of their old will would be revalidated, what can the surviving spouse do to claim a share of the estate?

Back 333

1. The surviving spouse may be entitled to an elective share
2. The surviving spouse may be entitled to pretermitted status if the testator failed to execute a new will or codicil

Front 334

If a couple gets divorced, all provisions in one's will relating to their ex-spouse are considered void. What about provisions that were made to the ex-spouses family?

Back 334

They remain valid unless the will indicates otherwise

Front 335

If a beneficiary to certain health, life insurance, and pension plans are covered by ERISA, what is the effect?

Back 335

ERISA pre-empts state laws regarding divorce. Therefore, if the divorced spouse is listed as a beneficiary to one of these plans, they will receive that share even if they were previously divorced, if the decedent has not revoked their beneficiary status

Front 336

Does the Social Security Act provide benefits that may continue despite a divorce?

Back 336

Yes, an individual who was married at least 10 years can receive benefits based on an ex-spouse's earnings history and can continue to do so even after the ex-spouse dies

Front 337

Can a decedent's unmarried children (under 18) and dependant parents (over 62) qualify for social security benefits?

Back 337

yes

Front 338

Antilapse only apples when the devisee was?

Back 338

A grandparent of the testator or a descendant of a grandparent of the testator

Front 339

Does antilapse apply if the devisee's death occurred before the will was executed?

Back 339

yes

Front 340

Does antilapse apple if the devisee's death occurred after the will was executed but before the testator's death?

Back 340

yes

Front 341

Can antilapse apply in situations of disclaimer?

Back 341

Yes, because if a devisee disclaims, he is treated has having predeceased the testator and the antilapse statute would give the gift to his descendants

Front 342

What happens to the gift when the antilapse statute applies?

Back 342

The gift does not fail. Instead the property is received by the deceased devisee's descendants, per stirpes

Front 343

How can application of the antilapse statute be blocked?

Back 343

If the testator has indicated that intent in her will by
1. A provision giving a devise to an alternate taker
2. A provision which includes survivorship language (my shares to my brother if he survives me) -- this provision blocks antilapse

Front 344

Does antilapse apply to devises to people who are not related?

Back 344

No. The gift would lapse upon the death of the beneficiary unless the will provides an alternative taker

Front 345

When is a class gift presumed?

Back 345

If the devisees are referred to only by group label. (my children)

Front 346

What is presumed if a devise refers to takers by group label and by name? (to my children, Ann, Bob, and Carol) or number (to my 3 children)?

Back 346

The devise is generally presumed to be a gift to individuals

Front 347

What event must a class member survive in order to take?

Back 347

The class member must survive the testator's death unless the will provides some other event must occur

Front 348

Can class membership increase and decrease?

Back 348

Yes between the time the will is executed and the testator's death unless the testator specifies that an individual must be in the class at a different time

Front 349

Do antilapse rules apply to class gifts?

Back 349

Yes but only to class gifts of the testator's grandparents or descendants of grandparents

Front 350

If antilapse applies, and a member of the class predeceases the testator, what happens to their share?

Back 350

It passes to that class member's descendants

Front 351

What happens to the property of a specific, demonstrative, or general devise if it fails?

Back 351

The property is added to the residue

Front 352

If property is devised to residuary takers and the devise to one of them fails, what happens to the failed devise?

Back 352

The other residuary takers share the failed devise

Front 353

What if the entire residuary devise fails?

Back 353

The residue passes by intestacy

Front 354

Are step children protected by the antilapse statute?

Back 354

no

Front 355

What is homestead?

Back 355

Property owned by somebody other than property owned by a husband and wife with rights of survivorship

Front 356

What is the purpose of homestead?

Back 356

To protect the property owner and family who takes title to the property when the owner dies

Front 357

What are some consequences of homestead?

Back 357

1. Restricts alienability
2. Restricts devises
3. Protected from creditors

Front 358

How are the laws determining whether a property is homestead supposed to be construed?

Back 358

Liberally

Front 359

Is homestead probate property?

Back 359

No

Front 360

Does the personal representative of an estate get to control homestead?

Back 360

No

Front 361

What must homestead be?

Back 361

Real property (dirt)

Front 362

What are the size limitations of homestead?

Back 362

If in municipality -- 1/2 acre
If not in municipality -- Up to 160 acres

Front 363

In a municipality, what does homestead encompass?

Back 363

The land and the residence. It will not cover a shed in the back yard

Front 364

Outside of the municipality, what does homestead encompass?

Back 364

The land and all inprovments on the 160 acres

Front 365

What are the occupancy requirements for homestead?

Back 365

Must be principal place of permanent residence. Decedent must own the property when he dies and he or his family must live at the property at time of death

Front 366

How does a person abandon homestead?

Back 366

Putting house up for sale or renting it out

Front 367

Is american citizenship required for homestead?

Back 367

No

Front 368

Can aliens establish homestead?

Back 368

Yes as long as they are legally in the country

Front 369

3 types of debts that can be levied against homestead?

Back 369

1. Debts for payment of taxes and assessments
2. Debts for the purchase or improvement of the home
3. Debts for labor performed on the real property, such as construction work, roofing, or window installation

Front 370

Can a married person who owns the primary residence (homestead) sell or mortgage it?

Back 370

Only with approval of their spouse

Front 371

If a decedent is the sole owner of homestead and is survived by a minor child and spouse can he devise the homestead by will?

Back 371

No. The spouse will receive a life estate. The decedent's lineal descendants (minor child and adult children) will receive a vested remainder interest in the homestead.

Front 372

If a decedent is the sole owner of homestead and is survived only by a minor child, can he devise the homestead by will?

Back 372

No, the decedent's lineal descendants will take the entire homestead

Front 373

If the decedent is the sole owner of homestead and has no minor children, but is survived by a spouse, can the decedent devise the homestead?

Back 373

Yes, but only to his spouse in fee simple

Front 374

If the decedent is the sole owner of homestead and has no minor child or spouse, can he devise the homestead by will?

Back 374

Yes he can devise it to anyone he wishes

Front 375

What if decedent devises property to a relative who does not qualify as an heir, such as a friend?

Back 375

The property loses its protection from the decedent's creditors

Front 376

May a spouse waive their homestead rights?

Back 376

Yes through waiver agreements and disclaimers

Front 377

What if a person fails to seek a declaration that the property is homestead?

Back 377

They might be said to waive their homestead rights

Front 378

Who can claim the property of the decedent by claiming it is "exempt"?

Back 378

Surviving spouse or if there is no surviving spouse, then the decedent's children

Front 379

What can the testator do to make sure that neither the spouse or the children can claim certain property as exempt?

Back 379

He can devise it away from them

Front 380

Are the total value of the exempt property included in the computation of elective, pretermitted, residuary, or intestate shares?

Back 380

No

Front 381

If the decedent devises the property to the person who could claim it as exempt, does it lose its potential exemption?

Back 381

No

Front 382

Exemption is subject to the right of a creditor who???

Back 382

Has a perfected security interest

Front 383

If a creditor has a perfected security interest and the spouse or child take the property subject to this interest, what must they do?

Back 383

They must pay the debt or the property can be sold to pay the secured creditor

Front 384

In order for the property to be exempt, what must the spouse or child do?

Back 384

Must affirmatively petition the court for a determination that it is exempt

Front 385

If property is specifically devised to someone other than the spouse or child, may the spouse or child claim it as exempt?

Back 385

NO

Front 386

How much of decedent's personal property can be claimed as exempt?

Back 386

Up to 1,000 dollars

Front 387

In addition to the 1000 dollars of personal items, certain household items and certain automobiles may be claimed as exempt up to?

Back 387

10,000

Front 388

What is family allowance?

Back 388

Provides cash assistance to a decedent's dependents during the early stages of probate

Front 389

Whom is family allowance available to?

Back 389

The surviving spouse and lineal heirs, both ascendants and descendants.

Front 390

What is the limit of how much allowance a person can receive?

Back 390

18,000

Front 391

Do amounts paid as family allowance reduce that person's share of the estate?

Back 391

No, unless otherwise provided for in the will

Front 392

Does the decedent's intent matter when considering elective share?

Back 392

No, the elective share rules apply even when the decedent deliberately tried to disinherit his or her spouse

Front 393

Do pretermitted spouse rules apply regardless of whether the decedent dies testate or intestate?

Back 393

No, the decedent must have died testate

Front 394

Do spousal elective share rules apply regardless of whether the decedent dies testate or intestate?

Back 394

Yes

Front 395

What is a dower?

Back 395

At common law, a dower gave a widow a life interest in 1/3 of her husbands land

Front 396

What is a curtesy?

Back 396

At common law, a curtesy gave a widower a life interest in all of his wife's land

Front 397

Does florida still follow dower and curtesy?

Back 397

No

Front 398

What was the elective share provision before 1999?

Back 398

A surviving spouse was entitled to 30% of the decedent's estate after it was reduced by valid claims against the estate and by mortgages, liens, and security interests
• Only probate property was included in this computation
• Property the decedent held in a survivorship tenancy, POD account, and life insurance in which the estate was not the beneficiary were also excluded from the computation
• Real property owned outside of florida was also excluded

Front 399

UPC Elective share

Back 399

• Takes into account certain nonprobate property and electing spouse own property
• Takes into account the longevity of marriage

Front 400

Under the UPC elective share rules, if the marriage lasted less than one year what can the electing spouse receive?

Back 400

The supplemental share (minimal amount)

Front 401

Under the UPC elective share rules, if the marriage lasted more than 1 year but less than two years, what is the elective share?

Back 401

3%

Front 402

Under the UPC elective share rules, if the marriage lasted 15 years or longer, what is the elective share?

Back 402

50%

Front 403

Differences between the UPC and the current Florida elective share rules?

Back 403

Florida does not consider length of marriage and does not consider the spouses property in computing the augmented estate

Front 404

What percentage of the estate is the electing spouse entitled to?

Back 404

30%

Front 405

5 determinations the personal representative is required to make regarding elective share?

Back 405

1. Which assets are included in computing the elective share
2. Whether any exclusions apply beyond those that apply in the first determination
3. How to treat an asset that is potentially governed b more than one inclusion provision
4. Which assets received by the spouse should count against the spouse's share
5. Which other beneficiaries will have their share reduced to fund the surviving spouses share

Front 406

The assets included in the elective share are divided into?

Back 406

Categories

Front 407

Category 1?

Back 407

All assets that comprise the decedent's probate estate including property subject to administration in any state or district of columbia
i. Valued at fair market value on the day of decedent's death
ii. Must subtract liens, claims from creditors, etc..
iii. Does not include HOMESTEAD

Front 408

Category 2?

Back 408

Decedent's ownership interest in accounts or securities that are registered as "pay on death", "transfer on death", or "in trust for" + decedent's ownership interest in accounts or securities that are registered in co-ownership with right of survivorship
i. Decedent's ownership interest is, in the case of accounts or securities held in tenancy by the entirety, 1/2 of the value of the account or security, and in all other cases, that portion of the accounts or securities which the decedent had immediately before death, the right to withdraw or use without the duty to account to any person

Front 409

Category 3?

Back 409

1. Fractional interest in property other than property in sections 1 & 2 held by the decedent in joint tenancy with right of survivorship or tenancy by the entirety
i. Decedent's fractional interest in property is the value of the property divided by the number of tenants

Front 410

Category 4?

Back 410

1. Revocable Trust Assets - when decedent places wealth in a trust in which they retain the right to revoke at anytime while alive but fail to cancel the trust before death
• The entire value of the property in the trust is included in the elective estate

Front 411

Category 5?

Back 411

Includes 2 types of property interests previously transferred by the decedent
• 1st type
 Any interest in property if the decedent had either the right to, or actual possession or use of the property's principal or income (i.e. decedent retained a life estate in property)
• Amount included in the elective estate is the value of the portion that the decedent enjoyed or had a right to enjoy (the value of his interest in life estate)
• 2nd type
 Any interest in property if the principal could be distributed or appointed to the decedent or for the decedent's benefit

Front 412

Category 6

Back 412

Net cash surrender value of a life insurance policy on the decedent's life if the decedent retained the power to surrender the policy
It is valued at the time immediately preceding death

Front 413

Catergory 7

Back 413

Amounts that a beneficiary receives under a variety of public or private pension and retirement plans because he survived the decedent
• Does not include social security and Railroad retirement act benefits

Front 414

Category 8

Back 414

Two types of transfers made by decedent witin 1 year of death
1st type
• A transfer that occurred because of a right, interest, or power terminated before death if the property would have been included in category 4 or 5 if the termination had not occurred until death
2nd type
• Any transfer not covered by one of the other categories if made within 1 year of death (outright gifts which the decedent retains no powers, rights, and interests)
• Gifts qualifying for a gift tax are not included

Front 415

Category 9

Back 415

Property transferred in satisfaction of the elective share

Front 416

9 assets excluded from elective estate

Back 416

1. Transfers that were irrevocable before Oct. 1st 1999 and transfers made after that date but before the date the decedent married the surviving spouse
2. Transfers for which the decedent received adequate consideration in money or money's worth
3. Transfers the spouse consented in writing
4. Proceeds of an insurance policy covering the decedents life to the extent the proceeds exceed the cash surrender value
5. Any policy on the decedent's life that is maintained pursuant to a court order
6. Decedent's half of certain property that is treated as community property
7. Property held in a special needs trust at the decedent's death
8. Property that is included in the decedent's federal gross estate solely because the decedent held a general power of appointment over the property
9. Homestead

Front 417

What if a property interest is included in more than 1 elective estate categories?

Back 417

It is placed in the category that results in the largest elective estate

Front 418

What if a single property interest in included in both category 1, because it is part of the probate estate, and in another category?

Back 418

The amount included in the elective estate under the second category is reduced by the amount included under category 1

Front 419

A spouse's elective share is satisfied from the following six categories of assets unless the testator provides a different means for satisfying the survivor's share.

Back 419

(a)To the extent paid to or for the benefit of the surviving spouse, the proceeds of any term or other policy of insurance on the decedent’s life if, at the time of decedent’s death, the policy was owned by any person other than the surviving spouse.
(b)To the extent paid to or for the benefit of the surviving spouse, amounts payable under any plan or arrangement described in 732.2035(7).
(c)To the extent paid to or for the benefit of the surviving spouse, the decedent’s one-half of any property described in 732.2045(1)(f).
(d)Property held for the benefit of the surviving spouse in a qualifying special needs trust.
(e)Property interests included in the elective estate that pass or have passed to or for the benefit of the surviving spouse, including interests that are contingent upon making the election, but only to the extent that such contingent interests do not diminish other property interests that would be applied to satisfy the elective share in the absence of the contingent interests.
(f)Property interests that would have satisfied the elective share under any preceding paragraph of this subsection but were disclaimed.

Front 420

If after considering the all the property interests, the surviving spouse's elective share is not fully satisfied, then other property interests abate in the following order

Back 420

(a)Class 1. The decedent’s probate estate and revocable trusts.
(b) Class 2. Recipients of property interests, other than protected charitable interests, included in the elective estate under 732.2035(2), (3), or (6) and, to the extent the decedent had at the time of death the power to designate the recipient of the property, property interests, other than protected charitable interests, included under 732.2035(5) and (7).
(c)Class 3. Recipients of all other property interests, other than protected charitable interests, included in the elective estate.
(d)Class 4. Recipients of protected charitable lead interests, but only to the extent and at such times that contribution is permitted without disqualifying the charitable interest in that property for a deduction under the United States gift tax laws.

Front 421

What are the consequences of taking an elective share?

Back 421

Any devises made to the spouse are used to satisfy the spouses elective share. However, a spouse that takes an elective share does not give up homestead, exempt property, and other allowance rights

Front 422

Where a guardian is making a claim for elective share the court must decide whether?

Back 422

the elective share is in the incapacitated person's best interest

Front 423

What is the test the court uses?

Back 423

o TEST: Do the best interests of the surviving spouse (not his/her relatives) require that the elective share be allowed?
• Does surviving Spouse need more wealth for their care?

Front 424

In what situations is the order of death an important factor in determining who takes property?

Back 424

1. By will
2. By intestacy
3. By survivorship
4. By contract (life insurance)

Front 425

3 potential order of death possibilities

Back 425

1. Property owner dies first
2. Beneficiary dies first
3. Property owner and beneficiary die simultaneously

Front 426

If the property owner dies first, who takes the property?

Back 426

The beneficiary takes the property no matter how short the survival period

Front 427

If the beneficiary dies first, who takes the property?

Back 427

• Not the beneficiary
• If the decedent was intestate, the beneficiary's descendants may take in his place
• If the decedent left a will, the antilapse statute might apply to the gift

Front 428

If the property owner and beneficiary die simultaneously, what happens?

Back 428

Fl. Stat. provides that the property owner is deemed to have survived the beneficiary when there is insufficient evidence to establish that they died other than simultaneously so the property goes through the property owners probate proceeding

Front 429

How many situations does the Fl. Simultaneous death statute apply to?

Back 429

4

Front 430

1st situation simultaneous death statutes applies to

Back 430

It applies whenever title to property, or its devolution, depends on the order of death (a testamentary devise or if owner and beneficiary are deemed to die simultaneously)

Front 431

2nd situation the simultaneous death statute applies to

Back 431

If one person provides that two or more beneficiaries will take successive interests by survivorship
What if there is insufficient evidence that the beneficiaries did not die simultaneously?
• The property is divided into equal parts based on the number of successive beneficiaries. Each part is distributed to the persons who would take if the particular beneficiary had been the survivor

Front 432

3rd situation simultaneous death statute applies

Back 432

3. Survivorship tenancies (joint tenancy with right of survivorship & tenancy by the entirety, NOT tenancy in common)
i. The property is divided equally by the number of tenants
ii. Each tenant is treated as surviving for his or her share of the property and as predeceased with respect to the remaining shares

Front 433

4th situation simultaneous death statute applies

Back 433

4.Life or accident insurance policies
i. The insured is treated as surviving the beneficiary

Front 434

Can the testator, insured, or other person whose property will be transferred according to the simultaneous death statute provide for a different outcome that the statute provides?

Back 434

Yes, by indicating a contrary intent in the governing instrument

Front 435

Is the option of establishing a contrary intent than that of the simultaneous statute available to a decedent whose property will pass by intestacy?

Back 435

No

Front 436

What type of proof is a death certificate establishing simultaneous death?

Back 436

It is prima facie evidence that people died simultaneous, but this can be rebutted

Front 437

In cases where survivorship is an issue, how long is the minimum length of survivorship for the beneficiary to take?

Back 437

• In Fl., there is no minimum period for survivorship
• The UPC requires that a beneficiary survive for 120 hours, the equivalent of 5 days

Front 438

Can a testator extend the minimum survivorship period by statute?

Back 438

• Yes, by including a will provision that extends the survivorship period
• Yes, by using common disaster language "language that will prevent a surviving devisee from taking if the deaths are attributable to a common disaster, such as an automobile accident (this is not the case if the property owned as joint tenants with right of survivorship)

Front 439

What is the "slayer statute"?

Back 439

Provides that a killer may not benefit from the person he killed

Front 440

When does the slayer statute apply?

Back 440

When the killer either "unlawfully and intentionally" killed or procured the murder of the decedent

Front 441

What does the slayer statute apply to?

Back 441

It applies to property passing by intestacy, property passing by will, property held in survivorship tenancy, and life insurance policies

Front 442

How does the probate court determine if a person is a killer?

Back 442

Final judgment of murder in any degree at the end of a criminal trial is conclusive evidence

Front 443

What if the person is not convicted of murder in the criminal trial? (i.e. they are excused…insanity)?

Back 443

The probate court may still determine that the person is a killer if it is proven by the greater weight of the evidence (preponderance of the evidence) that the killing was unlawful and intentional

Front 444

If a person is found guilty of murder during a criminal trial, is the estate held open while he appeals?

Back 444

No, even if he is successful on his appeal, the probate only need determine by a preponderance of the evidence that he is the killer

Front 445

When a devisee is subject to the "slayer statute, who gets the property?

Back 445

The devisee is treated as if he predeceased the testator. Lapse and Antilapse statutes apply. The taint that affects a killer does not apply to the killer's descendants

Front 446

What if the killer and decedent hold property in a survivorship tenancy?

Back 446

The slayer statute severs the tenancy and extinguishes the killer's right of survivorship. The property is treated as a tenancy in common

Front 447

What if the killer is the beneficiary of a life insurance policy on decedent's life?

Back 447

• The slayer statute prevents the killer from taking any policy benefits. If the decedent had named a contingent beneficiary, the proceeds will become part of the decedents estate

Front 448

What if the killer is the decedent's surviving spouse and would be entitled to a life estate in homestead property owned by the decedent?

Back 448

The decedent will be treated as having no surviving spouse

Front 449

What if the killer initially took title to the decedent's property and sold it to a third person?

Back 449

• If the purchaser was a good faith purchaser (took w/out notice and in good faith), they will not lose his or her rights to the property. Instead the killer becomes liable for the value of the property
• Same rule applies if the life insurance policy paid the proceeds to the killer before it received notice

Front 450

What is the effect of a disclaimer and waiver?

Back 450

• It results in a beneficiary receiving less property than he or she is entitled to receive

Front 451

What 2 things do the rules of disclaimer apply to?

Back 451

• Interests in property
• The right to appoint property

Front 452

When does a disclaimer become effective?

Back 452

• If there is an instrument creating the interest, then the disclaimer becomes effective when the interest becomes irrevocable
• If there is no instrument creating the interest, because the decedent was intestate, the disclaimer is effective as of the decedent's death

Front 453

When discussing disclaimers, what is the person who would have received the property interest referred to as?

Back 453

The disclaimant

Front 454

If a person executes a disclaimer on behalf of the disclaimant, what is that person called?

Back 454

A fiduciary

Front 455

What are some tax reasons for disclaiming?

Back 455

1. A devisee who is already wealthy might disclaim property to keep it out of his or her taxable estate or to avoid any gift tax on intervivos transfers -- a greater amount might pass to the disclaimant's children if the property passes directly to them from the original testator
2. A surviving spouse may use a disclaimer to reduce a devise from a deceased spouse and reduce the couple's overall transfer tax burden

Front 456

Who takes disclaimed property f the instrument provides for an alternate taker?

Back 456

That person (alternate taker) will receive the property

Front 457

Who takes disclaimed property if the instrument did not provide for an alternate taker? (3 rules)

Back 457

1. The property passes as if the individual disclaimant had died immediately before the interest was created
i.If the instrument or governing law requires survivorship until the time of distribution, the property passes as if the disclaimant had died immediately before the time for distribution
2. If the disclaimant is not an individual, the property passes as if the disclaimant never existed
3. If a preceding interest is disclaimed, the future interest takes effect as if the disclaimant died immediately before the time of distribution

Front 458

Do lapse and antilapse rules apply to disclaimers?

Back 458

yes

Front 459

If a person is insolvent, can a person disclaim an interest and allow it to pass to his lineal descendants to keep it away from his creditors?

Back 459

No

Front 460

A spouse can make an advance waiver of? (7 things)

Back 460

1. Right to elective share
2. Right to intestate share
3. Pretermitted share
4. Homestead
5. Exempt property
6. Family allowance
7. The right to be given preference for selection as the decedent's personal representative

Front 461

Why is the language that is used important for determining what rights are waived?

Back 461

Because "all rights" waives all of the 7 rights that can be used

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What are the requirements for a valid waiver?

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• A written instrument
• The person waiving rights must sign in the presence of two witnesses, who must also sign the document

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Does the spouse making the waiver need to receive consideration?

Back 463

no

Front 464

If the waiver occurs before the marriage, (prenup), is the waiving spouse entitled to a full and fair disclosure of the other spouses estate?

Back 464

no

Front 465

What are succession agreements?

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Agreements in which both spouses agree not to alter an agreed upon testamentary scheme

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When will succession agreements apply?

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When one individual claims that another agreed to make (or not make) a will, to make (or not make) a devise, to revoke (or not revoke) a will.

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What are the requirements for succession agreements to be enforceable?

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The agreement will not be enforceable unless the person making it signs in the presence of two attesting witnesses

Front 468

If spouses execute joint wills or mutual wills, are they presumed to have entered into a contract to make a will or a contract not to revoke a will?

Back 468

no

Front 469

May beneficiaries make private contracts regarding their share of the decedent's estate that could alter a decedent's distribution scheme?

Back 469

Yes, Florida statute allows it but such agreements are subject to the rights of creditors, tax authorities, and beneficiaries who are not party to the agreement

Front 470

What if property owners start to transfer property to family members and other beneficiaries during his life?

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• Those who do not receive these transfers may argue that the recipients share of the estate should be reduced accordingly
• The people receiving these transfers will argue that the transfer was a gift that is not chargeable against any future devise or inheritance

Front 471

If an intestate decedent was owed money by an heir, may any unpaid balance be charged against the heirs intestate share?

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Yes, but it may not be charged against any other beneficiary

Front 472

If the debtor predeceases the decedent, can the debt be charged against the intestate share of the debtor's heirs?

Back 472

No

Front 473

If the debt of a person is offset against his share of decedent's estate, but the debt is not due until some future time, how is the amount of the debt calculated?

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At present value

Front 474

May a testate and intestate creditor cancel any debts in his will?

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A testate creditor may cancel any debts, but not an intestate creditor

Front 475

When is the only time an advancement can occur?

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If the decedent dies intestate

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In what situation must we determine whether a transfer was an advancement?

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If a decedent transfers property to a beneficiary and then dies intestate

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What if an intervivos transfer is determined to be an advancement?

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• It is charged against the recipients share of the intestate estate
• It is treated as an early inheritance

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2 methods for establishing the transfer is an advancement?

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1. At the time the intestate delivers the property to the prospective heir, the intestate can also deliver a writing stating that the transfer is to be charged against the heir's inheritance
2. The heir may acknowledge in writing that he is receiving this early inheritance, the amount of which will be taken into account at the decedent's death

Front 479

If the advancement was in cash, how do we calculate the amount deducted from the person receiving the advancements share of the estate?

Back 479

By the amount in cash of the advancement

Front 480

What if the advancement was an item of property? (i.e. A received a condo worth 150,000 and upon the death of the decedent, the condo is worth 200,000) How much is subtracted from daughter's share of the estate?

Back 480

150,000

Front 481

Does an advancement affect the amount of the heir's lineal descendants are entitled to receive if the heir predeceaded the person giving the advancement?

Back 481

No, unless the writing provides otherwise

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What is Ademption by satisfaction

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Pre-death gifts that satisfy a devise

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3 requirements for ademption by satisfaction (only 1 must be met)

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1. The testator's will can provide that the lifetime gift reduces the devise
2. The testator can use a different document to provide that the gift reduces or satisfies the devise. The document must be contemporaneous with the gift
3. The devisee can give a written acknowledgement that the gift is in satisfaction of the devise