Wills (Florida)

Front 1

Execution of a Will

Back 1

1. T must be 18 yrs or older.
2. Must be in writing.
3. T must sign the will at the end in the presence of two witnesses.
4. Two witnesses sign in the presence of T and each other.

Front 2

Testator's Signature

Back 2

Any mark is sufficient as long as intended to be signature (initials, an X, etc.)

May be by another at T's direction in T's presence.

If done by one of the witnesses who later signs as a witness too, still okay.

Must sign in presence of witnesses OR acknowledge signature in their presence as his own.

Front 3

Witness' Signatures

Back 3

No publication requirement: they don't need to know it's a will.

Doesn't matter the order of signatures, as long as part of continuous, contemporaneous attestation ceremony.

Front 4

Writing after the testator's signature

Back 4

1. Present at the time of execution: Okay because signature is about timing, not placement.

2. Added after execution: Will is valid, but addition is not.

Front 5

Holographic Wills

Back 5

Must be:

1. In T's own handwriting.
2. Signed by T.
3. Signed by two witnesses.

*Still need will formalities!

Front 6

Scope of Vision Test

Back 6

Must be able to see each other if they look, to be in each other's presence.

Front 7

Conscious Presence Test

Back 7

In each other's presence if:
1. they are aware of what each other is doing, and
2. conscious of where each other is.

Front 8

Florida's Presence Requirement

Back 8

No definitive authority!

Know both Scope of Vision and Conscious Presence.

Front 9

Real estate owned in Florida

Back 9

Primary administration will be T's domiciliary.

Ancillary administration will be in Florida (where property is owned).

If will does not comply with FL law, full faith and credit if it complies with laws of domiciliary at execution.
EXCEPT: holographic wills.

In another language? Translate.

Front 10

Interested Witness

Back 10

A will or any provision thereof is not invalid because the will is signed by an interested witness.

Front 11

Proof of Wills

Back 11

Oath by one attesting witness before a judge or clerk.

Oath of personal representative okay if witnesses cannot be located, dead, or incompetent.

Front 12

Self-Proved Wills

Back 12

What you SHOULD do.

After execution of the will, T and witnesses sign a self-proving affidavit under oath before a notary.

Affidavit recites all elements of execution.

Formalities conclusively presumed.

*If witnesses only signed affidavit and not will, they count for the will too.

Front 13

Statue of Limitations

Back 13

Once administration is complete, everything is FINAL.

Front 14

Revocation by Physical Act

Back 14

1. Intent to revoke,
2. Physical act (burn, torn, canceled, obliterated, or destroyed).

An act of revocation on one EXECUTED copy, revokes all executed copies.

MUST cross some of the language of the will.

Does not count for Xerox copies.

Front 15

Presumptions for Revocation

Back 15

1. Will in T's possession from time of execution until death and found mutilated. T did the act with intent to revoke.

2. Will last seen in T's possession and control not found after T's death. T destroyed it with intent to revoke.

Rebuttable by showing someone else had access.

Front 16

Revocation by Another Person

Back 16

1. Done at T's direction and
2. In T's presence.

Front 17

Lost Wills Statute

Back 17

1. Due execution must be proved by testimony of attesting witnesses.
2. Contents must be clearly and distinctly proved by the testimony of at least two DISINTERESTED persons.

A correct copy, or Xerox copy, can be the equivalent of one of the disinterested persons.

Front 18

Revocation by Inconsistency

Back 18

Codicils that make no reference to will, but contain slightly inconsistent provisions control.

Codicil's provisions revoke the inconsistencies in the will.

Front 19

Revocation Relationship of Wills and Codicils

Back 19

Revocation of a will = Revocation of codicils.

Revocation of codicils does NOT = revocation of will.

Presumption that codicil revocation is intent to restore will to original execution.

Front 20

Divorce

Back 20

Following the execution of a will, revokes all provisions in favor of the ex-spouse.

Revokes ex-spouse as bene of non-probate transfers too.

Treat as if ex-spouse predeceased T.

Front 21

Separation

Back 21

Mere separation does not change a will or non-probate transfer.

Separation with complete property settlement = same as divorce.

Front 22

Remarriage

Back 22

Former ex-spouse is restored to will and non-probate transfers.

Front 23

Interlineation

Back 23

Ineffective UNLESS:

1. re-execution of the will
2. re-publication by codicil

Does NOT act as a partial revocation. Will is read as originally written.

Front 24

Revival

Back 24

If Will-2 expressly revokes Will-1, Will-1 is effectively revoked.

If Will-2 is later revoked by physical act, Will-1 IS NOT REVIVED.

Will-1 would have to be re-executed or re-published.

Front 25

Dependent Relative Revocation

Back 25

Allows us to disregard revocation which was based on, induced by, or premised on a mistake of law or fact.

BUT FOR mistake, T never would have made the revocation.

Brings back the last revoked will. Does not necessarily meet what T intended, but it is closest to intent.

Front 26

Incorporation By Reference

Back 26

1. Writing must be in existence at time will was executed.
2. Will must manifest an intent to incorporate the document.
3. Will must describe the writing sufficiently to permit its identification.

Front 27

Incorporation by Reference Exception

Back 27

Will may refer to a list or written statement that:
1. disposes of tangible personal property (NOT money),
2. signed by T
3. specifically describing the property with certainty
4. written before or after will execution.

It CAN be altered at ANYTIME.

Front 28

Doctrine of Independent Significance

Back 28

Acts having an independent lifetime motive may impact on the will as well.

Ex: "I devise the automobile that I own at my death to A." I own a Nissan, but at sometime after execution buy a Cadillac. Regardless of increase in value, A still gets the car because of doctrine.

Front 29

Lapse

Back 29

When a named beneficiary in the will or revocable trust dies before the testator.

The gift fails and falls to residue.

Front 30

Anti-Lapse Statute

Back 30

Applies when:
1. predeceasing bene is T's grandparent or descendant thereof
2. who leaves issue (this is where it will go).

Does NOT apply:
1. friends
2. spouses
3. if the will states "To X, if she SURVIVES me."

Front 31

Class Gift Rule

Back 31

Gift by will to a group of persons generically described (children, nephews, nieces, etc) and some class member predeceases T, surviving class members take UNLESS lapse statute applies.

Front 32

Specific Devise or Bequest

Back 32

Specifically identifiable thing

Ex: I devise Blackacre to X.
Ex: I devise my car to X.
Ex: I devise all of my bank accounts to X.

Front 33

Demonstrative Legacy

Back 33

General legacy with funding instructions.

Ex: I give the sum of $5000 to be paid out of the sale of my Acme stock, to X.

Front 34

General Legacy

Back 34

Pecuniary.

Ex: I give $10 to X.

Front 35

Residuary Bequest

Back 35

I give all the rest, residue, and remainder of my property to X.

Front 36

Abatement

Back 36

Sacrificing of gifts to satisfy funeral expenses, expenses of administration, and creditor's claims.

Also applies to satisfaction of elective and pretermitted shares.

Order:
1. Intestate
2. Residuary
3. General
4. Demonstrative
5. Specific

Front 37

Ademption

Back 37

Where a specific gift is no longer in the estate.

Ex: T specifically devised Blackacre to X. Years before T's death he sold Blackacre. X's gift is adeemed.

No ademption for demonstrative gifts. If funding source is gone, then fund with whatever you have in the estate.

Front 38

Specifically Devised Property (later Incompetent T)

Back 38

Specific devisee has right to a GENERAL legacy equal to the net sale price, condemnation award, or insurance proceeds.

UNLESS T's disability has been adjudicated to have ceased and survived a year after.

Front 39

Specific Devisee Right to...

Back 39

Remaining specifically devised property AND:

1. Any balance of purchase price owing from purchaser when K is still executory at T's death.
2. Any amount of condemnation award for taking of property, to extent unpaid at T's death.
3. Any amount of fire or casualty insurance proceeds unpaid at T's death.
4. Property acquired as a result of foreclosure of a security interest on specifically devised note.

NOTE: #1, #2, #3 all require them be unpaid or unfinished at T's death.

Front 40

Specific Devise of Stock

Back 40

Devisee takes "ANY ADDITIONAL or other securities of same entity owned by T because of action INITIATED BY ENTITY (stock split or dividend), excluding any acquired by exercise of purchase options."

Devisee takes "securities of ANOTHER ENTITY owned by T as a RESULT OF merger, consolidation, reorganization, or other ACTION INITIATED BY ENTITY."

Front 41

Latent Ambiguity

Back 41

Not obvious until the time to distribute arises.

Extrinsic evidence is admissible to clear up a latent ambiguity.

Absence of evidence = failure of the gift.

Ex: Gift to nephew "John Paul Jones." He doesn't exist, but two other nephews do.

Front 42

Mistake

Back 42

Clear and convincing evidence can be used to show T's intent and terms of the will were affected by mistake of fact or law.


Ex: Gift to nephew John Paul Jones, whom T hadn't seen for years. Nephew Paul Fredrick Jones can come forward with clear and convincing evidence to prove it was meant for him instead.

Front 43

Intestate Succession

Back 43

Survived by S and:
1. No Ds = S takes entire estate.
2. Ds all of whom are of both decedent and S = S takes entire estate.
3. Ds some of which are only decedent's or only S's = 1/2 to S

No Surviving S:
1. All to descendants (kids, grandkids, greatgrandkids)
2. No Ds, to parents.
3. No Ds or Ps, to siblings or descendants of siblings.

Note: You can disinherit your heir, but MUST give to someone!

Front 44

Per Stirpes

Back 44

Divide into as many shares as there are lines from decedent.

Front 45

Probate Estate

Back 45

Does NOT include:

1. Right of survivorship property
2. Property passing by K (life insurance, SS)
3. Bank accounts or securities titled in P.O.D. or T.O.D.
4. Property held in trust (revocable trusts too)
5. Property over which decedent had power of appt.

Front 46

Disclaimer

Back 46

Can be total or partial.

Passes as though disclaimant predeceased decedent. LOOK FOR ANTI-LAPSE!

Note: May occur at any time prior to acceptance of interest. Tax purposes, must occur w/in 9 months of decedent's death.

Front 47

Illegitimate Child

Back 47

1. Can inherit from biological mother.

2. Can inherit from biological father IF:
a. legitimated by marriage; or
b. written acknowledgment of paternity; or
c. adjudication of paternity before/after father's death.

3. Step-father: only by adoption or virtual adoption
a. After death of biological father: child can inherit from biological father's family
b. Before death of biological father: child cannot inherit from biological father's family

Front 48

Adoption

Back 48

Adoptive parents:
1. Child can inherit from both
2. Parents can inherit from child

Biological parents:
1. Child cannot inherit from parents
2. Parents cannot inherit from child

Front 49

Half-Bloods

Back 49

Whole-blood siblings get twice as much as half-bloods.

Front 50

Simultaneous Death Act

Back 50

Only have to survive by an instant.

1. Wills - as though T survived and bene predeceased.
2. Intestacy - intestate survived and heir predeceased
3. Insurace - As though insured survived and bene predeceased.
4. Joint Tenancy - treat as Tenancy in Common; 1/2 through each's estate.

Front 51

Advancement

Back 51

For intestate estates.

No gift is an advancement UNLESS:
1. declared as such in a contemporaneous writing by decedent; or
2. acknowledged as such in writing by the heir.

Front 52

Satisfaction

Back 52

For testate estates.

Not prepayment of any interest under the will UNLESS:
1. will provides for this treatment, or
2. T declares in contemporaneous writing that gift is to be deducted from devise or is in satisfaction, or
3. devisee acknowledges in writing that gift is in satisfaction.

Front 53

Surviving Spouse

Back 53

These take precedence over creditor claims:

1. Homestead: 160 acres of land if rural; 1/2 half acre w/in limits of incorporated town or city.

2. Exempt personal property: $20,000 of tangible personal property, 2 automobiles, and all qualified tuition programs UNLESS specifically devised to someone else. (free from creditors, intestate and elective shares).

3. Family allowance: up to $18,000 to support surviving spouse, or lineal heirs decedent was obligated to support or was supporting

Note: Over and above:
1. property given to spouse in will
2. elective share award
3. intestate share of surviving spouse

Front 54

Pretermitted Spouse

Back 54

Presumption it was unintentional UNLESS:
1. rights waived in pre- or post-nuptial agreement.
2. spouse provided for in will (provision must be in contemplation of marriage, not to my friend H).
3. will discloses intent to not provide for spouse.

Front 55

Elective Share

Back 55

1. Not automatic, spouse must file notice of election w/in 6 months of notice of administration

2. May be waived before or after marriage with or without consideration, by written K, agreement, or waiver.

3. Fair disclosure of extent of estate required if AFTER marriage, but not before.

4. Elective share is 30% of elective estate, includes:
a. estate subject to administration
b. 1/2 of all property passing by right of survivorship
c. property in revocable trust
d. property in irrevocable trust
e. gifts in excess of $14,000 made w/in a year of decedent's death

All REDUCED by any property passing to spouse by will, right of survivorship, as bene of securities or bank accounts, life insurance, or bene of elective share trust.

Front 56

Pretermitted Children

Back 56

Born or adopted after will is executed.

Entitled to intestate share.

UNLESS:
1. appears from will the omission was intentional
2. H had other children at execution and substantially all estate left to parent of pretermitted kid.

Front 57

Homicide

Back 57

Bars intestate share to INTENTIONAL killer.

Acquittal at a criminal trial is not controlling.

Standard is a preponderance of the evidence.

Jointly held property is treated like a Tenancy in Common.

Front 58

Lack of Testamentary Capacity Test

Back 58

1. Did T understand the nature of the act he was doing?
2. Did T know the nature and character of his property?
3. Did T know the natural objects of his bounty?
4. Did T understand the disposition he wished to make?

Must relate to the circumstance at the time the will was executed or shortly before/after.

Adjudicated incompetent doesn't raise conclusive presumption.

Front 59

Insane Delusion

Back 59

Having no basis in fact or reason.

Product of an insane delusion.

Front 60

Undue Influence

Back 60

Burden of proof on contestant to show:

1. Existence and exertion of the influence
2. Effect is to overpower the mind and will of T
3. Result is a will that wouldn't have been executed BUT FOR the influence.

Front 61

Presumption of Undue Influence

Back 61

1. confidential relationship with T exists (atty-client, doctor-patient, preist-parishioner)
2. and they draw or procure the execution of the will

Front 62

No Contest Clause

Back 62

VOID in Florida

Front 63

Disposition Without Administration

Back 63

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

Front 64

Summary Administration

Back 64

Estate less exempt property ($20,000 plus two automobiles) is less than $75,000.

Ex: J, married to H, dies leaving her estate to S. Her estate includes a car worth $15,000, a computer worth $4,000, a painting worth $3,000, and a bank account with $60,000.

$82,000 minus $20,000 for spouse and other jointly held items brings it below the $75,000 threshold.

Front 65

Full Administration

Back 65

All other estates.

Ex: J, unmarried and without kids, dies leaving her estate to S. Her estate includes a car worth $15,000, a computer worth $4,000, a painting worth $3,000, and a bank account with $60,000.

Over $75,000 so it must go through full administration.

Front 66

Caveat Procedures

Back 66

1. Person worried about estate administration or admission to probate without their knowledge, may file a caveat ANYTIME.

2. Creditors may file only AFTER decedent's death.

3. Once filed, cannot be admitted to probate without notice being served on caveator.

4. Persons with sufficient interest entitled to formal notice.

5. Others and creditors who file caveats only written notice.

Front 67

Order of Payment for Creditor Claims

Back 67

1. Expense of administration
2. Funeral expenses up to $6,000
3. Medicaid claims and debts and taxes w/ preference under federal law
4. Reasonable and necessary medical expenses for last 60 dyas
5. Family allowances (up to $18k)
6. Child support arrearages
7. Post-death expenses of continuing decedent's business not to exceed assets of the business
8. All other