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483 Cards in this Set

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Functions of a will
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
Intestate
an individual who dies without a will
testator
an individual who dies with a valid will
Testatrix
(woman) who dies with a valid will
Devisees
persons receiving property through will provisions
Heir at law
a person entitled to take the decedent's property under the laws of intestate succession
Earlier cases may distinguish between legatees, who receive bequests of personal property, and devisees, who receive devises of real property, but florida?
• Florida does not currently make this distinction
Beneficiaries
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
Probate
a process for administering a decedent's testate and intestate property
Probate of a will
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)
Items which are a part of the decedent's probate estate
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
Domicile
is an important concept in determining what property is included in the probate estate
Where is tangible and intangible personal property subject to probate
Generally tangible and intangible personal property is subject to probate in the jurisdiction in which the decedent is domiciled at death
Where is real property subject to probate
Real property is subject to probate in the jurisdiction which it is located
example of real, tangible, intangible property subject to probate
• 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)
Gross estate
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
Elective share estate
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
Personal representative
the person who administers an estate (also executor and executrix (testate estates) and administrator and administratrix (intestate estates)
Power of appointment
allows a property owner to give another person the right to decide who will ultimately receive the owner's property
Donor
is the person who creates the power of appointment and whose property will ultimately be distributed to another
donee or power holder
is the person who decides who will receive the property
Objects of the power - eligible recipients of the donor's objects
appointee
the person actually chosen by the power holder to receive property
durable power of attorney
authorizes one person (the attorney in fact) to act for another (the principal)
When does the durable power of attorney become effective?
When the person granting the power becomes incapacitated
General power of appointment
the power holder is allowed to appoint the property to herself, her estate, or creditors of either
Special power of appointment
the power holder is not allowed to appoint the property to herself, her estate, or the creditors of either
Designation of health care surrogate
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
Living will
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
Intestate Succession
decedent's spouse and lineal descendants will take decedent's probate property over the decedent's parents, siblings, and collateral heirs
What if a will fails to name a personal representative?
The court can appoint one
as a general rule, if a husband and wife take title to property in both of their names?
• Florida law presumes they own that property as tenants by the entirety unless the instrument states otherwise.
What if decedent and his/her spouse owned property as tenants by the entirety?
The surviving spouse takes all of the property by operation of law
What if the owners are not married to each other?
• 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
Is a decedent's share of tenancy in common property subject to probate?
yes
If 2 or more people own a bank account, what are the consequences concerning a right of survivorship?
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"
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?
yes
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?
NO
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?
yes
Pay on Death (POD)
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
What do Pay on Death accounts refer to?
Bank Accounts
What do Transfer on Death (TOD) accounts refer to?
Securities
Who is the owner of a POD or TOD account?
The person who opens and funds the account
Do the beneficiaries of a POD or TOD account have any rights to the account while the depositing owner is alive?
NO
When do the beneficiaries rights to the POD or TOD accounts vest?
On the death of the owner
Pay on Death accounts allow the depositing owner to make a gift effective on death without?
Complying with testamentary formalities and without the need for probate
How may an owner revoke the intended gift?
1. By withdrawing funds
2. Closing the account
3. Removing or changing the designated beneficiary
What if the designated beneficiary survives the account owner
The account is not probate property
What if no beneficiary survives the owner?
The account is probate property
A life insurance policy is a contract between?
The policy owner/purchaser and the insurance company that issues the policy
What does the insurance company promise?
To pay the policy proceeds to the designated the designated beneficiary when the insured dies
Are life insurance policies more valuable during the decedent's life or after the decedent's death?
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.
In addition to the company issuing the policy, what are the 3 other persons whom may potentially be involved in the life insurance policy?
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
Owner: A Insured: A Beneficiary: A Insured Dies First
• Probate property
Owner: A Insured: A Beneficiary: B Insured Dies First
• Not probate property
Owner: B Insured: A Beneficiary: B Insured Dies First
• Not probate property
Owner: B Insured: A Beneficiary: A Insured Dies First
• Probate Estate
Owner: B Insured: A Beneficiary: C Insured Dies First
• Not probate estate
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?
Yes
If the beneficiary dies before the insured, and the beneficiary is not the owner of the policy then?
There is no property to include in the beneficiary's probate estate
If the owner dies before the insured, then?
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.
May the owner of an IRA designate one or more beneficiaries to receive the account balance at her death?
Yes
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?
On the owner's death
Are these retirement plans part of the owner's probate estate?
NO
A retirement plan might be part of the owner's probate estate if
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
May the plan documents provide a substitute or default beneficiary?
Yes
If benefits paid to a survivor are not part of the probate estate, will their value be part of the federal gross estate?
Most likely yes
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?
Yes, and if the designated beneficiary survives the owner, the annuity is not part of the deceased owner's probate estate
If the owner fails to designate a beneficiary, names her estate as beneficiary, or all designated beneficiaries fail to survive the owner, then?
The annuity may be probate property
If the annuity payments are solely for the owner's life, then the amount included in the probate estate reflects?
Only payments due but not received before death
3 situations where intestate succession arises?
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
May a person die partially intestate?
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
Whom is the first taker provided by the intestacy statutes?
Surviving Spouse
If the surviving spouse is not survived by lineal descendants, how much of the probate estate can they receive through intestacy?
100 percent
Descendants include?
Children, grandchildren, great-grandchildren, great-great grandchildren, etc..
If the decedent is survived by descendants, and all of those descendants are also the surviving spouse's descendants, the surviving spouse receives?
The first 60,000 and 1/2 of the remaining estate
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?
1/2 of the probate estate
Florida establishes 3 categories regarding the spouse's share
The decedent can be survived by
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
The Uniform Probate Code uses 5 categories to determine the surviving spouse's intestate share, the decedent could be survived by:
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
If a decedent is survived by lineal descendants, what portion of the estate may they receive through intestacy?
Whatever portion of the estate that is not allocated to the surviving spouse
When do parents receive the intestate descendants probate estate?
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
When do Siblings and their Descendents receive the decedents estate?
If there is no surviving spouse, lineal descendants or parents, then the brother's and sisters divide the estate
What if there is a deceased sibling?
If a deceased sibling is survived by lineal descendants, then those descendants take that sibling's share
What type of heirs are siblings and their descendants?
Collateral heirs
2 characteristics of collateral heirs
1. They are not the decedents lineal ascendants or descendents
2. They and the decedent share a common ancestor
If the decedent has no surviving spouse, lineal descendants, parents, siblings, or siblings descendants, we must look for?
Other relatives. Fl. Statute provides for dividing the estate equally between the paternal and maternal kindred
Kindred are?
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)
If there are both paternal and maternal kindred?
Each group divides 1/2 of the estate
If there is only one group of kindred?
That group receives the entire estate
In allocating property to paternal or maternal kindred, who gets first?
Grandparents. If there is a grandparent, then no other kindred inherit
What if there is no grandparent?
Then the estate is divided between aunts, uncles, and descendants of deceased aunts and uncles
If there are no kindred, what is the last group of individuals who can get before the estate defaults to the State?
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)
Escheat?
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
What type of intestate distribution scheme does Florida follow?
Pure per stirpes system
Per stirpes system?
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
Difference between per stirpes and per capita?
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
When a child is adopted, what happens to the rights the birth parents have regarding the child?
They are terminated
Upon being adopted, the child is deemed a lineal descendent of?
The adopting parents
Can the adopted child inherit from or through the birth parents?
Generally no
Can the birth parents inherit through from or through the child
Generally no
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?
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
What about children born out of wedlock?
• 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
Several means for establishing inheritance rights between a child and his father and the father's family?
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
When can adjudication of paternity be established?
Before or after the father's death
What are afterborn children?
A child in gestation at the time of decedent's death. Those children conceived prior to, but born after, a decedent's death.
Are Afterborn children eligible to inherit?
Yes, Fl. Statute treats those children as if they had already been born at the time of the decedent's death.
Are Half Blood relatives treated the same as whole blood relatives under Florida law?
No
What are half blood relatives?
Are heirs related to the decedent through one common parent or grandparent
Under Florida Statute, How much are half bloods entitled to receive?
Each half blood heir receives only half as much as a whole blood heir.
What if only half blood family members survive
Then shares are equal
What type of compliance does Florida require with its statutes regarding the execution of will?
Strict compliance
Statutory requirements regarding the execution of wills?
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
Does Florida recognize oral wills or non attested wills?
No
May the testator direct a proxy to sign on his behalf?
Yes, but the proxy must sign the testator's name in the testator's presence
Does the proxy have to include his or her name in the document?
No, but it is advisable to do so
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?
Yes
What two duties do the witnesses have?
1. They must actually witness the signing (or acknowledgment of signing) of the will
2. They must sign the will attesting to that fact
Whom may qualify as a witness?
Anyone competent to be a witness, including beneficiaries
How is competency of a witness judged?
By the person's ability to understand and be understood concerning the witnessing of the will
What are the problems with using beneficiaries of a will as witnesses?
Other beneficiaries or potential beneficiaries may challenge the will on the grounds that the interested witness unduly influenced the testator.
If the undue influence challenge can be avoided, what other challenge may be used?
The fact that the beneficiaries self-interest affects his or her credibility as a witness to the execution of the will
What are the consequences when a will is lost and there are no disinterested witnesses?
It will be impossible to establish the lost will's terms
What does it mean that the will must be signed at the "end"?
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
2 Tests used to determine whether the will was signed "in the presence" of the testator
1. Line of vision test
2. Conscious presence test
Line of vision test?
• 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)
Conscious presence test?
• 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
Example of Conscious Presence Test
• 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.
Which test have Florida courts indicated should be followed to comply with Fl statute?
Neither. Attorney's should follow the line of vision test to assure the executed document will be admitted to probate
Are testimonium and attestation clauses required in the will?
No
What may a testimonium clause look like?
In Witness Whereof, I have ……
What is an attestation clause?
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.
What is a self-proof affidavit?
It is sworn testimony that the execution of the will comported with Florida law
Who must sign a self-proof affidavit?
Both the testator and witnesses sign the self-proof affidavit
When does Florida Statute require that this affidavit be signed if used?
It may be signed at the time of will execution or at a later date
What must a court ensure to enter a will into probate?
That it was executed with the formalities required by Florida Law
How does a court ensure a will was executed with the formalities required by Florida law?
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
How does a self-proof will (one with a self-proof affidavit) make the process of admitting the will to probate easier?
A self-proof will may be admitted to probate without sworn testimony of witnesses or the personal representative
When should a self-proof affidavit be executed?
At the same time the will is executed
Does Florida law require that the testator publish his will by declaring to the witnesses that the instrument is his will?
NO
Does Florida Law require that in the case of a self proof will, the testator declare that the instrument is his will?
Yes
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?
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
Age requirements of the testator?
To execute a valid will, the testator must be at least 18 years old, or an emancipated minor
Does a will executed by an unemancipated minor become valid when the minor becomes emanciapted or reaches the age of 18 before dying?
No
2 ways a minor become emancipated?
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
In addition to meeting the age requirement, the testator must also be of _________ when the will is executed
Sound Mind (must have testamentary capacity)
What is the presumption of testamentary capacity?
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
What if the testator was of sound mind at the moment the will was executed, and subsequently found to lack capacity?
Subsequent incapacity is irrelevant
Factors used to determine whether the testator had capacity at the time the will was created?
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
Insane delusions?
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
May a testator have testamentary capacity but still be susceptible to the influence of another person?
Yes
When is influence considered to be "undue"?
If the influence destroyed the testator's free agency and substituted another's volition for that of the testator
Generally, 3 factors must be established to determine if there was undue influence?
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
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
1. Was a substantial beneficiary
2. Occupied a confidential relationship with the testator
3. Was actively involved in procuring the will
What if the entire will was the product of undue influence?
Then the entire will is void
What if only a portion of the will was a product of undue influence?
Then only that portion is void. The remaining portions will be valid unless the court invalidates them for other reasons
What is a substantial beneficiary?
Someone who received a substantial or unnatural devise
When is a devise considered unnatural?
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
People who may have confidential relationships with the decedent? (partial list of 5)
1. Family members
2. Physicians
3. Attorneys
4. Religious advisors
5. Household employees
May undue influence be claimed even if the persons exercising undue influence did not directly benefit?
Yes, if they benefited indirectly
7 Factors that are examined to determine whether a beneficiary was active in procuring the will
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
Proceedings to remove a personal representative and for revocation of probate of a will are considered?
Adversary proceedings
Who has standing to contest a will?
Any interested person may petition for revocation of probate
What does the term "interested person" mean?
Any person who may reasonably be expected to be affected by the outcome of the particular proceeding involved
Must the issue of standing be specifically plead as an affirmative defense, and therefore waived if not plead?
No
Doctrine of Dependant Relative Revocation
Creates a rebuttable presumption that the testator would have preferred to revive his earlier bequests rather than let the property go by intestacy
2 presumptions that form the basis of the Doctrine fo Dependant relative Revocation
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)
Two Types of Fraud as it pertains to wills
1. Fraud in the inducement
2. Fraud in the execution
Fraud in the execution occurs when
1. The document has been switched or deliberately altered
2. When the testatrix is misled as to the type of document she is signing
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?
Fraud in the execution
What distinguishes fraud in the execution from mistake?
The intent to deceive
If the testator was intentionally misled through lies into forming a testamentary intent that he would otherwise not have formed, the lie may constitute?
Fraud in the inducement
What happens when the entire will has been obtained by fraud?
The entire will is void
If the offending conduct affects only a part of the will?
Only the part of the will affected by fraud is void
What if voiding the will or voiding the offending part of the will does not provide sufficient relief?
The intended beneficiary may ask the court to impose a constructive trust on the testatrix's assets for her benefit
Example of Voiding not being sufficient
• 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
Is frustration through fraud, duress, coercion, or deception of a mere intent to revoke a will sufficient to impress a trust on the devise?
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.
What happens to a will executed under duress?
It is void
Contests based on "mistake" include?
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)
What are some situations that do not constitute "mistake"?
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
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?
Not void a will
What is the effect of striking all or part of a will?
The probate court eliminates the devise that was wrongfully obtained.
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?
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.
Does Florida allow "In Terrorem" clauses, which allow a testator to disinherit a beneficiary who contests a will?
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
Does the Uniform Probate Code allow "In Terrorem" clauses?
Yes, but only if there is no "probable cause for instituting proceedings to contest the will"
What is Spoliation?
A post-execution change in the will by an unauthorized third person
Is Spoliation a form of tortious interference?
Yes
2 Reasons why Spoliation receives different treatment than tortious interference?
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
When does Tortious Interference arise?
When 1 party convinces a testator to devise property in a manner that deviates from the expectations of family members or other potential devisees
Why is it important to distinguish between tortious interference claims and claims of fraud, mistake, and undue influence?
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
Can a suit for tortious interference be pursued if adequate relief is available in a probate proceeding?
No, the remedy in a probate proceeding must be exhausted before a tortious interference suit can be brought.
Types of actions that would support an action for Tortious interference?
1. Undue influence
2. Destruction of a will (etc..)
3. Changes to a dispositive scheme
• There must be no remedy available through probate
When a decedent who has made a will dies and the will cannot be found, what presumption arises?
That the decedent herself destroyed the will, intending to revoke it
Is the presumption rebuttable?
Yes
If a will has been maliciously destroyed, what two procedures are potentially available to rectify the situation under Florida Law?
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
4 Elements necessary for the tort of intentional interference with an expectancy
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
If a testator is satisfied with most of a will's provisions but wants to make a minor change, what can he do?
Add a codicil
What is a codicil?
A testamentary instrument ancillary to a will that adds to, varies, or revokes provisions in the will
Must a codicil be executed with the same formalities as a will?
Yes
Can a testator use the self-proof process for a codicil?
Yes
2 ways by which a testator can revoke a will or codicil?
1. By subsequent writing
2. By physical act
Must the testator have testamentary capacity at the time of revocation or amendment?
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
May a revocation of a will be accomplished by any writing?
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.
What must the language of a subsequent writing state in order to revoke a prior will?
It must indicate that it "revokes all prior wills" or " I revoke my will dated _____"
Must a testator who uses a subsequent writing to revoke a will revoke the entire will?
No, the testator can use this method to revoke an entire will or part of a will
What if a testator's will makes no mention of any earlier will?
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.
What ways does the Florida Statutes allow for the physical destruction of a will?
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
Can a testator use subsequent "physical acts" to amend or revoke part of a will?
No, a will that is revoked by subsequent act is completely revoked
May a testator direct that another person act on the testator's behalf when physically revoking a will?
Yes, but the person must perform the act in the testator's presence
Does a change in the testator's family status, such as getting married or divorced, revoke a will?
No, those changes may affect only particular devises, but the remaining will stays intact
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?
Yes, and it does not matter whether the original will was destroyed or still exists
If a testator revokes a will, does he revoke all codicils to that will?
Yes
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?
The earlier provisions remain revoked only if there is evidence that the testator did not intend to revive them
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?
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
What presumption arises when a will is found to be in torn or mutilated condition?
That the testator tore or mutilated the will with the intent to revoke it
Can the presumption be rebutted?
Yes, by substantial evidence or competent testimony that the testator lacked the intent to revoke the will
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?
Probably Not, and definitely No if he failed to comply with statutory requirements
Is the testator's destruction of a copy of a will or codicil, on the assumption that it was the original, enough for revocation?
No, testator needs both the original copy + the intent to revoke
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?
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.
Can a testator refer to a pre-existing writing and incorporate it by reference into his will?
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)
May a testator dispose of property based on acts and events rather than based on a devise in the testator's will?
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)
May the testator devise property to the trustee of a trust?
Yes, the trust must exist when the will is executed, or the two documents must be executed concurrently
Is a devise to a trust valid even if the trust is revocable or is amended after the will's execution?
Yes, but if the trust is revoked in its entirety before the testator's death, the devise to the trust will be invalid.
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?
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.
What does Florida statute require of the testator when making these lists?
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
Dependant relative revocation
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
What does Dependant relative revocation require?
• 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
When will a court find that the doctrine of dependant relative revocation applies?
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.
Does the doctrine of dependant relative revocation apply to an invalid portion of a will?
No, generally the doctrine is applied only to an entire will. There have been some exceptions applied to charitable devises
2 challenges lost wills present?
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
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?
Cannot be probated
When will a court likely find that the presumption that a lost will was intentionally destroyed by the testator has been rebutted?
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
How may the terms of a lost will be proved?
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
How does Florida construe the term "correct copy" when proving a lost will?
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
Can a draft ever be used to prove a will?
Yes, but it would have to be accompanied by the testimony of 2 disinterested witnesses
What if a will or codicil is found after administration of the estate has commenced?
The document may be admitted to probate upon petition by any interested person
What if a will or codicil is found and the estate has been fully administered and closed?
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.
What controls the legal effect of the testator's dispositions?
The intention of the testator
2 types of ambiguity in wills?
1. Latent
2. Patent
Latent ambiguity?
• 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
Patent ambiguity?
Ambiguity is obvious from the face of the document
What can a court do if a will contains an ambiguity or mistaken description?
A court can consider evidence of the testator's intent to resolve the ambiguity or correct the description
If a particular ambiguity involves two beneficiaries, only one of whom is arguably the correct beneficiary, what may the potential beneficiaries do?
They may agree to share the devise rather than risk losing it entirely
Simultaneous Death Law
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
Lapse and Antilapse
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
Failure of testamentary Provision
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
Changes in securities
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
Nonademption of Specific Devises
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
Exercise of power of appointment
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
Generic Terms
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
Ademption by Satisfaction
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
Statutes include other rules that the testator can alter including
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
If there are two conflicting portions of the will that cannot be read together, which one controls?
The latter provision
Can extrinsic evidence be used to clear up patent and latent ambiguities
Yes
4 types of devises
1. Specific
2. Demonstrative
3. General
4. Residuary
Devises that are reduced because estate assets are needed for other purposes are said to ?
Abate
Ademption is relevant when?
An estate does not won a particular item of property devised in the testator's will
When does lapse occur?
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
When does Abatement and ademption occur?
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
Specific devise
• 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
Example of Specific Devise
• A devise of "my property, Greenacre, located at 321 Main Street"
Demonstrative devise
A devise of a fixed amount payable from a particular fund or from the proceeds of the sale of an item
Two elements essential to a demonstrative bequest
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
Example of Demonstrative devise
"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.
In demonstrative devises, what if the fund specified to cover the devise is insufficient?
Fl. Statute provides that the devise is treated as general to the extent of the insufficiency
General devise
Neither specific nor demonstrative, but which indicate a particular amount to be received
Example of General devise
"I devise 50,000 to Jim"
How is a general devise payable?
It is payable from any estate asset or fund other than one required to pay specific or demonstrative devises
Can general devises be of property other than money?
Yes
Does the testator have to own the property at death when creating a general devise?
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
Residuary devises
Are gifts of whatever probate assets have not been devised by specific, demonstrative, or general devises
Example of Residuary Devise
"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"
Between the time that a will is executed and the testator dies, what events might affect the composition of the probate estate?
1. Medical costs
2. Post-death events
3. Creditors
4. Costs of administration
5. Federal taxes
6. Pretermitted shares
7. Elective share
If the estate is inadequate to pay all claims and expenses that are superior to devises, what happens to the devises?
They are eliminated
If the estate is too small to pay all of the claims after the devises have been eliminated, what happens?
The creditor claims will go unpaid
Can a testator include abatement rules in the will?
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
What if the will is silent as to the rules of abatement?
Then Fl. Statutes control
What is the order in which assets abate?
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
What is the priority of claims against the estate?
Fl. Statute assigns claims against the estate to a series of 8 classes
What if assets are insufficient to cover all claims within a single class?
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
What are Class 1 claims?
Those related to the expenses of estate administration
What are Class 2 claims? What is the maximum dollar amount that can be treated as a class 2 claim?
Are expenses of the decedents funeral, including grave marker. A maximum of 6,000 can be treated as a class 2 claim
What are class 3 Claims?
Those debts and taxes that have preference under federal law and certain other claims such as those for recoupment of medicaid benefits
What are class 4 claims?
Relate to the last 60 days of the decedent's final illness
What are class 5 claims?
Cover family allowance to maintain certain family members during the estate's administration. Family allowance is currently capped at 18,000
What are class 6 claims?
Any court ordered child support
What are class 7 claims?
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
What are class 8 claims?
All other claims against the estate
What if the claimants want money rather than payment in other assets?
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)
May assets owned by a revocable trust be taken to satisfy claims?
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
When does abatement occur?
When there is not enough probate property to satisfy various claims and expenses or to fund all devises
What is ademption by extinction?
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
Ademption by satisfaction
Applies if the devisee previously received the particular property or a substitute and the receipt was meant to satisfy the devise
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)
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
How do you determine which possibility to use? (2 factors)
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)
What if the specific devise was disposed of by a guardian?
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
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?
In this case, if the testator lives at least 1 year following this adjudication, the devisee is not entitled any substituted gift
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)
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
Are general and residuary devises subject to ademption by extinction?
No, because they do not involve particular estate assets
What about demonstrative devises?
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
What is the only type of devise subject to ademption by extinction?
Specific devises
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?
The securities remaining in the estate
If the devise is of securities and the corporation issued a stock dividend or split its stock, what is the devisee entitled to?
The original devise plus the additional shares
If the devise is of securities and the owner decides to purchase additional shares, what is the devisee entitled to?
The owner is only entitled to the shares devised in the will
If a corporation merges into another or undergoes some other corporate reorganization, is the specific devisee entitled to shares of the second entity?
Yes, because the action was initiated by the entity and not the owner.
If a gift of property is encumbered, who pays?
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
Where does the federal estate tax computation begin?
With the decedent's gross estate
What does the gross estate include?
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
What is the federal estate tax imposed on?
The taxable estate
What is the taxable estate?
Is the amount of the gross estate that remains after the it is reduced by allowable deductions
3 of the most important deductions allowed are for?
1. Transfers to surviving spouse
2. Transfers to charity
3. Payment of various obligations (debts and expenses of administration)
Before apportioning taxes, what must the personal representative do first?
Ascertain if any assets are exempt from apportionment
Before apportioning taxes, what must the personal representative do second?
Must determine the relative apportionment rules
What are the 3 sources for the relative apportionment rules?
1. The governing instrument
2. The internal revenue code
3. The florida statutes
What does the florida statutes apportion taxes between?
Probate and nonprobate assets
Where do tax apportionment rules take from first?
The residuary devise
Do the tax apportionment rules give specific or demonstrative devises priority over general devises?
No, if the residue is insufficient, the other devises contribute to the estate based on the value included in computing the estate tax
Can the statutory apportionment rules be changed by the testator?
yes by direction in the governing instrument (will or trust)
Do marriage, birth, or adoption revoke a will?
No
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:
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
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?
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
If a will indicates a disinheritance of a future spouse, may a spouse claim to be pretermitted status?
no
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?
yes
May the testator's intent to omit any future spouse be implied from the will?
yes
What share does a pretermitted spouse receive?
The share of the decedent's estate that they would have received if the decedent died intestate
When is the share of a pretermitted spouse calculated?
After reducing the probate estate by debts, costs of administration, and an appropriate share of taxes
What is the effect on other devises if a pretermitted spouse receives property?
One or more other devises lose part of their devises. Unless the will provides a different rule for abatement, statutory abatement applies
Does florida statute allow for pretermitted children?
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
For children to be eligible for pretermitted status, what are the requirements?
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
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?
no
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?
No, cause the child is living when the codicil republished the will
What happens if a testator fails to amend a will following divorce or annulment?
The will is administered as if the former spouse died when the divorce or annulment occurred and the provisions benefiting them become void
Two exceptions to the general rule that a divorce or annulment render the former spouses provisions in the will void?
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
If ex-spouses remarry each other, does their remarriage revalidate the provisions that were voided by the prior dissolution?
no
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?
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
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?
They remain valid unless the will indicates otherwise
If a beneficiary to certain health, life insurance, and pension plans are covered by ERISA, what is the effect?
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
Does the Social Security Act provide benefits that may continue despite a divorce?
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
Can a decedent's unmarried children (under 18) and dependant parents (over 62) qualify for social security benefits?
yes
Antilapse only apples when the devisee was?
A grandparent of the testator or a descendant of a grandparent of the testator
Does antilapse apply if the devisee's death occurred before the will was executed?
yes
Does antilapse apple if the devisee's death occurred after the will was executed but before the testator's death?
yes
Can antilapse apply in situations of disclaimer?
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
What happens to the gift when the antilapse statute applies?
The gift does not fail. Instead the property is received by the deceased devisee's descendants, per stirpes
How can application of the antilapse statute be blocked?
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
Does antilapse apply to devises to people who are not related?
No. The gift would lapse upon the death of the beneficiary unless the will provides an alternative taker
When is a class gift presumed?
If the devisees are referred to only by group label. (my children)
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)?
The devise is generally presumed to be a gift to individuals
What event must a class member survive in order to take?
The class member must survive the testator's death unless the will provides some other event must occur
Can class membership increase and decrease?
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
Do antilapse rules apply to class gifts?
Yes but only to class gifts of the testator's grandparents or descendants of grandparents
If antilapse applies, and a member of the class predeceases the testator, what happens to their share?
It passes to that class member's descendants
What happens to the property of a specific, demonstrative, or general devise if it fails?
The property is added to the residue
If property is devised to residuary takers and the devise to one of them fails, what happens to the failed devise?
The other residuary takers share the failed devise
What if the entire residuary devise fails?
The residue passes by intestacy
Are step children protected by the antilapse statute?
no
What is homestead?
Property owned by somebody other than property owned by a husband and wife with rights of survivorship
What is the purpose of homestead?
To protect the property owner and family who takes title to the property when the owner dies
What are some consequences of homestead?
1. Restricts alienability
2. Restricts devises
3. Protected from creditors
How are the laws determining whether a property is homestead supposed to be construed?
Liberally
Is homestead probate property?
No
Does the personal representative of an estate get to control homestead?
No
What must homestead be?
Real property (dirt)
What are the size limitations of homestead?
If in municipality -- 1/2 acre
If not in municipality -- Up to 160 acres
In a municipality, what does homestead encompass?
The land and the residence. It will not cover a shed in the back yard
Outside of the municipality, what does homestead encompass?
The land and all inprovments on the 160 acres
What are the occupancy requirements for homestead?
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
How does a person abandon homestead?
Putting house up for sale or renting it out
Is american citizenship required for homestead?
No
Can aliens establish homestead?
Yes as long as they are legally in the country
3 types of debts that can be levied against homestead?
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
Can a married person who owns the primary residence (homestead) sell or mortgage it?
Only with approval of their spouse
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?
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.
If a decedent is the sole owner of homestead and is survived only by a minor child, can he devise the homestead by will?
No, the decedent's lineal descendants will take the entire homestead
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?
Yes, but only to his spouse in fee simple
If the decedent is the sole owner of homestead and has no minor child or spouse, can he devise the homestead by will?
Yes he can devise it to anyone he wishes
What if decedent devises property to a relative who does not qualify as an heir, such as a friend?
The property loses its protection from the decedent's creditors
May a spouse waive their homestead rights?
Yes through waiver agreements and disclaimers
What if a person fails to seek a declaration that the property is homestead?
They might be said to waive their homestead rights
Who can claim the property of the decedent by claiming it is "exempt"?
Surviving spouse or if there is no surviving spouse, then the decedent's children
What can the testator do to make sure that neither the spouse or the children can claim certain property as exempt?
He can devise it away from them
Are the total value of the exempt property included in the computation of elective, pretermitted, residuary, or intestate shares?
No
If the decedent devises the property to the person who could claim it as exempt, does it lose its potential exemption?
No
Exemption is subject to the right of a creditor who???
Has a perfected security interest
If a creditor has a perfected security interest and the spouse or child take the property subject to this interest, what must they do?
They must pay the debt or the property can be sold to pay the secured creditor
In order for the property to be exempt, what must the spouse or child do?
Must affirmatively petition the court for a determination that it is exempt
If property is specifically devised to someone other than the spouse or child, may the spouse or child claim it as exempt?
NO
How much of decedent's personal property can be claimed as exempt?
Up to 1,000 dollars
In addition to the 1000 dollars of personal items, certain household items and certain automobiles may be claimed as exempt up to?
10,000
What is family allowance?
Provides cash assistance to a decedent's dependents during the early stages of probate
Whom is family allowance available to?
The surviving spouse and lineal heirs, both ascendants and descendants.
What is the limit of how much allowance a person can receive?
18,000
Do amounts paid as family allowance reduce that person's share of the estate?
No, unless otherwise provided for in the will
Does the decedent's intent matter when considering elective share?
No, the elective share rules apply even when the decedent deliberately tried to disinherit his or her spouse
Do pretermitted spouse rules apply regardless of whether the decedent dies testate or intestate?
No, the decedent must have died testate
Do spousal elective share rules apply regardless of whether the decedent dies testate or intestate?
Yes
What is a dower?
At common law, a dower gave a widow a life interest in 1/3 of her husbands land
What is a curtesy?
At common law, a curtesy gave a widower a life interest in all of his wife's land
Does florida still follow dower and curtesy?
No
What was the elective share provision before 1999?
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
UPC Elective share
• Takes into account certain nonprobate property and electing spouse own property
• Takes into account the longevity of marriage
Under the UPC elective share rules, if the marriage lasted less than one year what can the electing spouse receive?
The supplemental share (minimal amount)
Under the UPC elective share rules, if the marriage lasted more than 1 year but less than two years, what is the elective share?
3%
Under the UPC elective share rules, if the marriage lasted 15 years or longer, what is the elective share?
50%
Differences between the UPC and the current Florida elective share rules?
Florida does not consider length of marriage and does not consider the spouses property in computing the augmented estate
What percentage of the estate is the electing spouse entitled to?
30%
5 determinations the personal representative is required to make regarding elective share?
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
The assets included in the elective share are divided into?
Categories
Category 1?
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
Category 2?
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
Category 3?
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
Category 4?
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
Category 5?
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
Category 6
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
Catergory 7
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
Category 8
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
Category 9
Property transferred in satisfaction of the elective share
9 assets excluded from elective estate
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
What if a property interest is included in more than 1 elective estate categories?
It is placed in the category that results in the largest elective estate
What if a single property interest in included in both category 1, because it is part of the probate estate, and in another category?
The amount included in the elective estate under the second category is reduced by the amount included under category 1
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.
(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.
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
(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.
What are the consequences of taking an elective share?
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
Where a guardian is making a claim for elective share the court must decide whether?
the elective share is in the incapacitated person's best interest
What is the test the court uses?
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?
In what situations is the order of death an important factor in determining who takes property?
1. By will
2. By intestacy
3. By survivorship
4. By contract (life insurance)
3 potential order of death possibilities
1. Property owner dies first
2. Beneficiary dies first
3. Property owner and beneficiary die simultaneously
If the property owner dies first, who takes the property?
The beneficiary takes the property no matter how short the survival period
If the beneficiary dies first, who takes the property?
• 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
If the property owner and beneficiary die simultaneously, what happens?
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
How many situations does the Fl. Simultaneous death statute apply to?
4
1st situation simultaneous death statutes applies to
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)
2nd situation the simultaneous death statute applies to
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
3rd situation simultaneous death statute applies
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
4th situation simultaneous death statute applies
4.Life or accident insurance policies
i. The insured is treated as surviving the beneficiary
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?
Yes, by indicating a contrary intent in the governing instrument
Is the option of establishing a contrary intent than that of the simultaneous statute available to a decedent whose property will pass by intestacy?
No
What type of proof is a death certificate establishing simultaneous death?
It is prima facie evidence that people died simultaneous, but this can be rebutted
In cases where survivorship is an issue, how long is the minimum length of survivorship for the beneficiary to take?
• In Fl., there is no minimum period for survivorship
• The UPC requires that a beneficiary survive for 120 hours, the equivalent of 5 days
Can a testator extend the minimum survivorship period by statute?
• 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)
What is the "slayer statute"?
Provides that a killer may not benefit from the person he killed
When does the slayer statute apply?
When the killer either "unlawfully and intentionally" killed or procured the murder of the decedent
What does the slayer statute apply to?
It applies to property passing by intestacy, property passing by will, property held in survivorship tenancy, and life insurance policies
How does the probate court determine if a person is a killer?
Final judgment of murder in any degree at the end of a criminal trial is conclusive evidence
What if the person is not convicted of murder in the criminal trial? (i.e. they are excused…insanity)?
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
If a person is found guilty of murder during a criminal trial, is the estate held open while he appeals?
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
When a devisee is subject to the "slayer statute, who gets the property?
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
What if the killer and decedent hold property in a survivorship tenancy?
The slayer statute severs the tenancy and extinguishes the killer's right of survivorship. The property is treated as a tenancy in common
What if the killer is the beneficiary of a life insurance policy on decedent's life?
• 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
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?
The decedent will be treated as having no surviving spouse
What if the killer initially took title to the decedent's property and sold it to a third person?
• 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
What is the effect of a disclaimer and waiver?
• It results in a beneficiary receiving less property than he or she is entitled to receive
What 2 things do the rules of disclaimer apply to?
• Interests in property
• The right to appoint property
When does a disclaimer become effective?
• 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
When discussing disclaimers, what is the person who would have received the property interest referred to as?
The disclaimant
If a person executes a disclaimer on behalf of the disclaimant, what is that person called?
A fiduciary
What are some tax reasons for disclaiming?
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
Who takes disclaimed property f the instrument provides for an alternate taker?
That person (alternate taker) will receive the property
Who takes disclaimed property if the instrument did not provide for an alternate taker? (3 rules)
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
Do lapse and antilapse rules apply to disclaimers?
yes
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?
No
A spouse can make an advance waiver of? (7 things)
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
Why is the language that is used important for determining what rights are waived?
Because "all rights" waives all of the 7 rights that can be used
What are the requirements for a valid waiver?
• A written instrument
• The person waiving rights must sign in the presence of two witnesses, who must also sign the document
Does the spouse making the waiver need to receive consideration?
no
If the waiver occurs before the marriage, (prenup), is the waiving spouse entitled to a full and fair disclosure of the other spouses estate?
no
What are succession agreements?
Agreements in which both spouses agree not to alter an agreed upon testamentary scheme
When will succession agreements apply?
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.
What are the requirements for succession agreements to be enforceable?
The agreement will not be enforceable unless the person making it signs in the presence of two attesting witnesses
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?
no
May beneficiaries make private contracts regarding their share of the decedent's estate that could alter a decedent's distribution scheme?
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
What if property owners start to transfer property to family members and other beneficiaries during his life?
• 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
If an intestate decedent was owed money by an heir, may any unpaid balance be charged against the heirs intestate share?
Yes, but it may not be charged against any other beneficiary
If the debtor predeceases the decedent, can the debt be charged against the intestate share of the debtor's heirs?
No
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?
At present value
May a testate and intestate creditor cancel any debts in his will?
A testate creditor may cancel any debts, but not an intestate creditor
When is the only time an advancement can occur?
If the decedent dies intestate
In what situation must we determine whether a transfer was an advancement?
If a decedent transfers property to a beneficiary and then dies intestate
What if an intervivos transfer is determined to be an advancement?
• It is charged against the recipients share of the intestate estate
• It is treated as an early inheritance
2 methods for establishing the transfer is an advancement?
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
If the advancement was in cash, how do we calculate the amount deducted from the person receiving the advancements share of the estate?
By the amount in cash of the advancement
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?
150,000
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?
No, unless the writing provides otherwise
What is Ademption by satisfaction
Pre-death gifts that satisfy a devise
3 requirements for ademption by satisfaction (only 1 must be met)
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