Florida Wills

Question 1

What are the 7 requirements for creation of a valid will?

Answer 1

1. T must be 18 or over
2. in writing
3. T must sign will
4. at the end of the will
5. in the presence of 2 witnesses
6. who sign in T’s presence
7. and in the presence of each other

Question 2

What happens if a portion of the will (e.g. a clause naming personal representative) follows the T’s signature?

Answer 2

If clause present at time of execution and T just signed above it, in FL, it’s ok. The “end” is referring to a time sense , not a place on the document. (most jxs., everything above signature is good, everything below is bad).

BUT, if the clause was added after execution – uniform throughout US – will is valid but the addition is not.

Question 3

T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Admissible to probate?

Answer 3

FL: No special break for holographic wills. No witnesses here, so no valid will even though in her own handwriting.

Some states allow handwritten and signed by T holographic wills. NOT FLORIDA.

BUT, a handwritten will witnessed by 2 witnesses IS VALID.

Question 4

T in hospital bed with contagious disease when will executed. 2 witnesses in doorway, standing in hall; screen by bed hides their view of T. T says from behind screen, “This is my will. It looks OK; where do I sign?” AFter T signs, will brough out to hall. Witnesses hear T from behind the screen request them to witness. Witnesses sign in hall. Has will been validly executed?

Answer 4

FL: NO definitive authority – mention both tests:

Scope of vision test (minority rule): in each other’s presence only if they could see each other sign. Will flunks in hypo.

Conscious presence test: if they are conscious of where each other are and what each other are doing, then ok. In hypo - good to go.

Question 5

Must T’s estate be administered in FL if he is a domiciliary of Spain and executed a will that complies with the law of Spain but not FL? T dies owning FL real estate.

Answer 5

Yes. Primary administration will be domicile at death, but ancillary admin in each place T owned real property.

Question 6

Is T’s will valid in FL if it is written in Spanish and does not meet the FL wills statute but does meet Spain’s wills laws?

Answer 6

Yes. Will have to provide court with English translation.

The will is valid if it meets either the FL laws or the law of the decedent’s domicile at the time of execution.

**NOTE: It cannot be an unattested holograph.

Question 7

“I give my faithful nurse, Nell, the sum of $30,000.” Nell is one of two attesting witnesses to the will. Does Nell take the bequest under the will?

Answer 7

Yes. It’s bad practice because it creates an implication of undue influence, but someone must prove the undue influence. If they do, then she can’t take.

Question 8

What is the rule re proof of wills at probate?

Answer 8

1. Oath of any one attesting witness taken before circuit judge or court clerk.
2. If witnesses cannot be located or are incompetent or dead, oath of personal representative that he believes teh writing to be the decedent’s last will.

(As a matter of practice, should make the will self-proving).

Question 9

How do you make a will self-proving?

Answer 9

At the time the will is signed by T and attesting witnesses (or sometime thereafter but within T’s lifetime), T and witnesses sign a self-proving affidavit under oath before a notrary public.

2. The affidavit recites all elements of due execution.
3. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc) are conclusively presumed.
   * No one can contest the will for lack of formality, but can still go after for capacity, etc.

Question 10

Once administration of an estate is completed, everything is final. Thus, a later discovered will ____ be admitted to probate.

Answer 10

CANNOT

Question 11

What does “in duplicate” mean? E.g., Susan property executed a will in duplicate giving all property to her children.

Answer 11

She executed 2 copies with original signature.

Question 12

Revocation of a will by a physical act requires:

Answer 12

1. intent to revoke AND
2. physical act

• Burned, torn, canceled, obliterated, destroyed.
• Neither standing alone is enough.

Question 13

An act of revocation on one executed copy revokes ________.

Answer 13

all executed copies.

Question 14

In 2009, T property executed a will in duplicate giving all property to her children. In 2011, she wote “VOID” on one of the copies of the 2009 will and drew many vertical lines across the front of the one-page document. Will revoked?

Answer 14

Yes. An act of revocation on one executed copy revokes all executed copy.

The language VOID clarifies her intent, but just drawing one line through language + intent is enough.

MUST cross some language off of the will.

Question 15

Revoked?

1. VOID written on back of will?
2. “I cancel this will” written and signed in margins?
3. VOID written on face of Xerox copy?

Answer 15

All, no.

Must cross some language off of the will itself.

Question 16

What presumption arises if:

1. Will is in T’s possession from the time of excution until death and it was found in mutilated condition after T’s death?
2. Will last seen in T’s possession and control not found after T’s death.

Answer 16

1. T did the act with intent to revoke.
2. Reason it can’t be found is that T destroyed it with the intent to revoke.
   * These are reubuttable.

Question 17

Revocation by another person must be

Answer 17

1. at T’s direction AND

2. in T’s presence

Question 18

T calls his attorney, who is holding his will, and orders his attorney to destroy the will.

1. If the order is never carried out, will revoked?
2. If attorney does destroy the will, revoked?

Answer 18

1. Nope. Need intent + physical act. Intent alone is not enough.
2. Nope, because for revocation by proxy, need T’s direction + T must be present.

Question 19

What is the lost wills statute?

Answer 19

If a will was destroyed, but not revoked, how can the will be probated?

1. Due execution must be proved by testimony of attesting witnesses AND
2. Contents must be clearly and distinctly proved by the testimony of at least 2 disinterested persons, a correct copy being the equivalent to one of them.
   * If can’t do these things, then act as if the will had been revoked.

Question 20

What is a correct copy in re to the lost wills statute?

Answer 20

carbon or xerox copy == not a typewritten draft from which only a few minor changes have been made.

Question 21

What happens if a later codicil is inconsistent with an earlier will?

Answer 21

If the C makes no reference to the will, but contains slightly inconsistent provisions, to teh extent possible the will and codicil are read together. Where inconsistent, the later document controls and thereby revokes the inconsistency in the prior will.

Question 22

What is a codicil?

Answer 22

An amendment to a will. Must be made with the same formalities as a will.

Question 23

Revocation of a will revokes all ____ thereto. BUT, revocation of a ___ to a will does not automatically revoked the _____. Instead, in the abnsence of contrary intent, it is presumed that T intended his will as originally executed.

Answer 23

codicils

codicil

will

Question 24

What effect does divorce have on a will? Say T left W his house and money, but 2 years later, he divorces W. One year later, without changin will, he dies.

1. What if separated?
2. What if separated with property settlement agreement?
3. What if they remarry?

Answer 24

Divorce, following a will, revokes all provisions in favor of the ex-spouse. Construe the will as if Sheila were dead.

1. Mere separation does not affect her rights under the will.
2. Separation with property settlement agreement = waiver + construe as if she were dead.
3. If they re-marry, she’s back in.

Question 25

Can an interlineation be given effect?

Answer 25

NO, unless 1. after the change was made, T re-executes the will OR 2. T republishes the will by codicil. (occures when T makes teh change on the will, then on a separate sheet of paper writes out the reaffirmation to execute the will as changed and does all the stuff that makes a will compliant). * Essentially, have to do all of the formalities again.

Question 26

T/F: In FL there can be no partial revocation by physical act.

Answer 26

TRUE! Can revoke in entirety by physical act, but not partial. So if an interlineation fails, the previous designation in the will is not revoked. If T goes to his will, which says $10,000 to Dan and crosses out $10,000 and puts $15,000. The $15,000 must meet the interlineation rules. If it doesn't the $10,000 stays. NOT revoked by the cross-out.

Question 27

What is the Dependent Relative Revocation rule? DRR?

Answer 27

Allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation. *T executes W-1. Later he executes W-2, which "hereby revokes all wills heretofore made by me." Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens? So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and becuase T would not have revoked W-2 but for the mistake.

Question 28

*T executes W-1. Later he executes W-2, which "hereby revokes all wills heretofore made by me." Later, with the thought that he now prefers the terms of W-1, T destroys W-2, thinking W-1 will now be in effect. He dies. What happens?

Answer 28

So long as W-1 satisfies the lost will statute, it will be revived. DRR allows to disregard a revocation because it was based on a mistake of law and becuase T would not have revoked W-2 but for the mistake.

Question 29

As a normal matter, a will does not go into effect until admitted to probate at death, but we make an exception if:

Answer 29

the will expresses a revocation of earlier wills. That provision is immediately in effect.

Question 30

To incorporate an extrinisc document by reference in a will: Exception?

Answer 30

(no formalities) DIE 1. writing must be in Existence at the time the will was executed. 2. will must manifest an Intent to incorporate the document. 3. will must Describe the writing sufficiently to permit its identification. EXCEPTION: Will may refer to a written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (other than money) not specifically disposed of by the will. The written list must be signed by T and it must describe the property with reasonable certainty. May be written before or after the will was executed. May be altered at any time.

Question 31

What is the exception, followed in FL, to the rules re incorporating an extrinisc document into a will?

Answer 31

The will may refer to written statement or list that disposes of TANGIBLE PERSONAL PROPERTY (not money) not specifically disposed of in the will. Written list must be signed. May be written before or after the will was executed. May be altered at any time. T must describe the property with reasonable certainty. SDTA

Question 32

What are the lapse/ anti-lapse rules?

Answer 32

1. When a benficiary named in teh will or revocable trust dies before the T, the gift lapses, UNLESS 2. It is saved by the state's anti-lapse statute. 3. In FL, the anti-lapse statute applies when the predeceasing beneficiary is the T's grandparent or a descendent thereof who leaves issue. 4. Gift goes to issue. (It does not matter if predeceasing beneficiary's will leaves all to her husband -- follow the anti-lapse statute).

Question 33

T devises a will in 2004, it provides, "I give the sum of $5,000 to my sister, Paula." Paula dies in 2005; she is survived by her husband H and their two children. Paula has a will that leaves all of her estate to H. T dies in 2010. Who takes the $5,000?

Answer 33

Paula's 2 kids split the $5,000. Generally the gift would lapse, but FL's anti-lapse statute provides that the gift does not lapse if the predeceasing beneficiary is the T's grandparent or a descendant therof who leaves issue. Here, Paula is a descendent of T's grandparents (because she is T's sister) and she left 2 children (issue). Thus, the gift goes to her two children.

Question 34

What is the class gift rule in re to the anti-lapse statute?

Answer 34

If a will makes a gift to a class, only the class members who survive the T take the share of the gift, unless the will provides otherwise or the anti-lapse statute's requirements are met.

Question 35

If the residuary estate is devised to two or more persons and the gift to one of them fails for any reaosn, _____.

Answer 35

the surviving residuary devisees take the entire residuary estate in proportion to tehir interests in the residue. ** Look for anti-lapse statute to apply if one of the devisees is a grandparent of T or a descendant of a grandparent of T.

Question 36

What is a specific devise or bequest?

Answer 36

Gift of a specific asset and that asset only. E.g., I devise Blackacre [my 2005 Cadillac] to my son, John. E.g., "my car" or "all of my bank accounts" All ok because a will speaks as of the date of death.

Question 37

What is a demonstrative legacy?

Answer 37

Gift of a pecuniary amount + funding instructions. E.g., I give the sum of $5,000 to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah.

Question 38

What is a general legacy?

Answer 38

Gift of a specified pecuniary amount. E.g., I give the sum of $10,000 to my daughter, Donna.

Question 39

What is a residuary bequest?

Answer 39

The gift of whatever is left. E.g., I give all the rest, residue, and remainder of my property to my wife, Agnes.

Question 40

What happens if T's estate is partially insolvent at the time of his death? In what order are the gifts sacrificed (abated) to satisfy funeral expenses, expenses of administration, and creditor's claims?

Answer 40

1. property passing by intestacy 2. residuary devises and bequests 3. property not specically or demonstratively devised (general legacies) 4. specific and demonstrative gifts

Question 41

What type of gifts does ademption apply to?

Answer 41

specific only

Question 42

What is the general common law rule re ademption?

Answer 42

If T bequests a specific gift to John and the specific item is not available at the time of T's death, then John takes nothing. E.g., T bequests Blackacre to John. Some years before her death, T sold Blackacre, which was specifically devised to John. John's gift is adeemed. Beneficiary takes nothing.

Question 43

What are the two FL rules that vary from common law to take the edge off of ademption?

Answer 43

1. If will executed before T declared incompetent: If specificially devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, specific devisee has a right to a GENERAL LEGACY equal to the net sale price, condemnation award, or insurance proceeds unless T's disability has been adjudicated to have ceased and T survives the adjudication by one year. (Wrote the will while competent, now incompetent, don't want the stuff that happened while incompetent to mess w/ the will). 2. A specific devisee has the right to the remaining specifically devised property AND 1. any balance of purchase price owing from purchaser when contract is still executory at T's death. (J gets any payments due from Mary under the contract to sell BA to Mary if she still owes payments on the sale) 2. Any amount of condemnation award for taking the property, to the extent unpaid at T's death. 3. any amount of fire or casulaty insurance proceeds unpaid at death. 4. property acquired as a result of a foreclosure of a security interest on a specifically devised note.

Question 44

I give and bequeath my Rembrandt painting to my daughter Dora. The Rembrandt painting is incinerated in 2012. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?

Answer 44

No, Dora is adeemed. The incompetency statute doesn't come into play. Any amount of fire or casualty insurance UNPAID, but here he lived long enough to collectthe insurance.

Question 45

What is the rule if the specific bequest increases? E.g., T bequeaths his 100 shares in Acme stock to his son, Simon. At the time of death, T owned 200 shares, consisting of the 100 he owned at the time he executed the will and an additional 100 that were distributed via stock dividends. How many shares does the son take?

Answer 45

Son takes all 200. Rule: Specific devisee takes any additional or other securities of the same entity owned by the T because of action intiated by the entity, excluding any acquired by exercise of purchase options.

Question 46

"I bequath my 100 shares in Tax Shelters, Inc. to my son, Simon." Tax Shelters was acquired by Ling-Temco, and as part of the merger, each shareholder was given one share of LT for every two shares of Tax Shelters, Inc. At T's death he owned 50 shares of LT stock. Does Simon get the LT stock?

Answer 46

Yes. Specific devisee gets securities of another entity owned by the T as a result of merger, consolidation, reorganization, or other similar action initiated by the entity.

Question 47

I bequeath my 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker stock to B. Thereafter T sells all of her Coronado and Baker stock. Who takes what at T's death? .

Answer 47

A: nothing. She is adeemed. Specific devise. B: Takes 200 shares of Baker stock. Not a specific devise because no "my." Personal rep will take cash and purchase the stock to be given to B.

Question 48

What is the rule re latent ambiguities in the will?

Answer 48

Extrinsic evidence is admissible to clear up latent ambiguity; if no evidence clarifies, goes to residuary.

Question 49

I give $5,000 to my nephew, John Paul Jones. At the time T executed the will he had 2 nephews, one named James Peter Jones and one Paul Frederick Jones. T had never met nor corresponded with either nephew, and no nephew named John Paul Jones ever existed. Who takes $5,000?

Answer 49

Latent ambiguity: If no extrinisic evidence can clarify who the gift was meant for, then residuary takes.

Question 50

What is the common law rule re mistake in a will? FL rule?

Answer 50

Common law: If mistake, follow terms of will anyway. FL: Interested person can confvince the court that there's been a mistake by clear and convinving evidence. Court may reform the terms of a will, even if unambiguous, to conform to the terms of the T's intent if it is proven by clear and convincing evidence that both the accomplishment of the T's intent and teh terms of the will were affected by a mistake of fact or law. In determining the T's original intent, the court may consider evidence relevant even though evidence contradicts an apparent plain meaning of the will.

Question 51

Under the intestacy rules, the surviving spouse takes the entire estate if:

Answer 51

1. the decedent leaves no surviving descendants, or 2. the decedent is also survived by descendants, all of whom are also descendants of the surviving spouse, and the spouse does not have any other descendants. **Note: Surviving spouse takes 1/2 of the estate if the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other.

Question 52

Under teh intestacy rules, the surviving spouse takes 1/2 of the estate if:

Answer 52

If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of another.

Question 53

The portion of the estate not going to a surviving spouse is distributed to other heirs in the following order:

Answer 53

1. descedants, per stirpes (strict) 2. parents/ surviving parent 3. brothers & sisters & their descendants, per stirpes 4. one-half to paternal grandparents & one-half to maternal grandparents and their descendants, per stirpes (both halves to one side if other side has no takers) 5. kindred of the last deceased spouse, as if she had survived the decedent and then died. Failing all above, estate escheats to the state.

Question 54

T/F: You cannot disinherit your heir by fiat.

Answer 54

True: If there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will. You can disinherit heirs, but in order to do that, must leave the stuff to someone else.

Question 55

The intestacy statute only applies to the probate estate. What is the probate estate? What is not included?

Answer 55

Probate estate = the estate that could have been controlled by a will had the decedent executed one. Not included: 1. property passing by right of survivorship 2. property passing by contract 3. bank accounts or securities titled P.O.D. or T.O.D. form 4. property held in trust (inc. revocable trust) 5. property over which the decedent had a power of appointment.

Question 56

A solvent heir or will beneficiary can disclaim his or her interest in a decedent's estate. Disclaimer can be ____ or _____. It results in the property passing as though _______.

Answer 56

total or partial disclaimant predeceased decedent **Note FL rule re when disclaiming must occur for tax purposes = must occur within 9 mos. after decedent's death.

Question 57

Under the FL disclaimer statute, when must disclaimer be made?

Answer 57

1. May occur at any time prior to acceptance of the interest. 2. BUT, to be effective for tax purposes, must occur within 9 months of decedent's death. 3. For minor beneficiaries, disclaimer must be made within 9 months of attaining age 21.

Question 58

Children born out of wedlock are heirs of the mother, but not of the father UNLESS:

Answer 58

1. he marries the mom 2. he is adjudicated teh fatehr before or after his death, or 3. he acknowledges paternity in writing

Question 59

For purposes of intestate succession, adopted children are treated the same as ______ ______ of the adopting parents.

Answer 59

natural children

Question 60

There is no inheritance in either direction between adopted children and their natural parents, EXCEPT:

Answer 60

1. where an adopting parent marries one of the natural parents 2. where the child is adopted by a close relative.

Question 61

Generally, stepchildren and foster children have no inheritance rights unless _____. However, the doctrine of _______ applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt him.

Answer 61

adopted by the stepparent or foster parent adoption by estoppel

Question 62

What is the rule in FL re posthumous children for intestacy purposes?

Answer 62

In FL, heirs conceived before the decedent's death but born thereafter inherit intestate property as if they had been born in the decedent's lifetime.

Question 63

What is the rule in FL re half bloods for intestacy purposes?

Answer 63

Half bloods are brothers and sisters who have only one common parent. For purposes of inheritance by collateral kin, FL provides that half bloods take 1/2 as much as whole bloods, except where all collateral kin are half bloods. (most states make no distinction between 1/2 bloods and whole bloods).

Question 64

What is the simultaneous death act?

Answer 64

When disposition of property (by will, intestacy, joint tenancy, etc) depends on the order of death and the order cannot be established, the property of each decedent is disposed of as if he had survived the other.

Question 65

T/F: In re to simultaneous death act, if one person survives even an instant more than the other, the act does not apply.

Answer 65

True in FL. Some other states require 120 hours.

Question 66

What is an advancement?

Answer 66

A gift made to next of kin with the intent that the gift be applied against any shar the next of kin inherits from the donor's estate. * At common law a substantial lifetime gift to a next of kin was presumed an advancement. In FL, no gift is considered an advancement unless this intention is declared in a contemporaneous writing by the decedent, or acknowledged in writing as such by the heir. * If found to be an advancement, amount is added back into pot for purposes of determining shares, then subtracted from recipient's share.

Question 67

In FL, no gift is considered an advancement unless

Answer 67

1. declared in writing by the decedent OR | 2. acknowledged in writing as such by the heir.

Question 68

A lifetime gift is not prepayment of any interest under a will (satisfaction) UNLESS:

Answer 68

1. the will provides for this treatment 2. the T declares in contemporaenous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or 3. the devisee acknowledges in writing that the gift is in satisfaction.

Question 69

What rights of a surviving spouse take precedence over creditors?

Answer 69

1. HOMESTEAD exemption (160 acres outside, 1/2 acre if within limits) 2. Exempt PERSONAL PROPERTY: SS and MINOR children are entitled to $20,000 worth of tangible personal property (furniture, etc.), 2 autos used as family autos, and all qualified tuition programs UNLESS, in each case, these items were specifically devised to someone else. 3. FAMILY ALLOWANCE: Up to $18,000 for support of surviving spouse or lineal heirs (ascendants & descendants) whom decedent was obligated to support or was actually supporting. Purpose is to provide support while assets tied up in probate. * These are all over and above (1) property given to spouse by will, (2) elective share award, or (3) intestate share of surviving spouse (or minor children).

Question 70

If facts of question involve husband & wife, you will want to discuss:

Answer 70

1. Homestead, personal property, and family allowance exemption 2. Pretermitted spouse? 3. Spouse's right to claim elective share

Question 71

In most states, marriage following execution of a will has no effect on the earlier will. In FL, however, pretermitted spouses take an INTESTATE SHARE unless,

Answer 71

1. waived in a pre or post nuptial agreement 2. the will makes a gift to the sposue in contemplation of marriage 2. the will specifically discloses an intention not to make a provision for the spouse.

Question 72

What is the surviving spouse's elective share?

Answer 72

30% of the decedent's elective estate. The elective share is inaddition to the spouse's right to exempt property, family allowance, and homestead.

Question 73

What property makes up the elective estate?

Answer 73

The elective estate consists of the decedent's probate estate and various nonprobate assets such as: 1. D's interest in POD or survivorship accounts or securities 2. D's interest in property held in JT w/ right of survivorship or in TIC. 3. revocable trsuts 4. irrevocable transfers to the extent that the decedent retained a right to income or principal 5. the net cash surrender value of the decedent's life insurance 6. death benefits from a pension; or 7. property transferred within one year before death or in satisfaction of the elective share. (death bed gifts in excess of $14,000).

Question 74

What is the procedure for making an elective share election?

Answer 74

Must be filed on or before the earlier of: 1. 6 months after the service of a copy of the notice of administration on the SS or an attorney in fact or guardian of the property of the SS, or 2. 2 years after the D's death.

Question 75

The right of election (elective share) may be exercised by the SS, her ______, the holder of a ______ family power of attorney, or if she is incapacitated, by _______.

Answer 75

attorney durable the guardian of her property

Question 76

If the SS dies without having made an election (elective share), the right ______. However, the right to an elective share is not lost if she dies _________, but before the court determines the amount of the elective share.

Answer 76

dies with her after filing the notice of election

Question 77

The elective share amount is reduced by the value of any property passing from the decedent to the spouse by:

Answer 77

1. will 2. right of survivorship 3. as beneficiary of securities or bank accounts titled POD or TOD form, 4. as beneficiary on a life insurance contract, or 5. as beneficiary of an elective share trust *Elective share trust: Trust created by the D for spouse's benefit. Spouse must have teh right to income for life. If trustee has power to distribute principal for the spouse's health, support and maintenance, reduce elective share by an amount equal to 80% of the value of the trust. If the trustee has no such power, reduce elctive share by 50% of the value of the trust.

Question 78

The right of election, right of pretermitted spouse, right of SS as intestate successor, and rights to homestead, exempt personal property, and family allowance, and riht to preference in appointment of personal represetative can be waived by _______ before or after marraige. Consideration is _______. If before marraige, disclosure is __ required; if after marraige, each spouse must make a _________.

Answer 78

written agreement not not fair disclosure of his/her estate

Question 79

Tom died on 1-5-2002, leaving a net estate of $200,000. Prior to his death, Tom had created a revocable trust. The property in the trust was worth $1 million at Tom's death. Tom never married until his marriage to Mary about 6 mos. before his death. Tom's will, executed in 1997, leaves his $200,000 estate to his revocable trust. The trust provides that all trust property, including the property added to the trust under Tom's will, is to be divided equally between Tom's brother Darryl and his sister Sal. 1. What share of Tom's estate is Mary entitled to as a pretermitted spouse? 2. Should Mary claim an elective share instead?

Answer 79

1. She's entitled to the intestate share of the probate estate (here $200,000 b/c no descendants). 2. Yes, because 30% of the $1.2 million = $360,000, which is more than $200,000. She can't have both.

Question 80

A pretermitted child is born or adopted _____.

Answer 80

after the will is executed.

Question 81

A pretermitted child is entitled to take _______. UNLESS:

Answer 81

an intestate share (what the child would have taken had there been no will at all). *We treat this as if failure to provide for the child was unintentional. UNLESS: 1. it appears from the will that omission was intentional. 2. H had other children at execution and substantially all estate left to parent of pretermitted child.

Question 82

What is an intestate share?

Answer 82

The portion that would be taken had there been no will at all.

Question 83

What is the effect of a codicil on a wife or child's status as pretermitted?

Answer 83

The codicil re-dates the will to teh date of the codicil, so if the codicil was executed after the marriage/ birth of hte child, then wife/ child does not qualify as pretermitted.

Question 84

A person who _____ and ______ kills the decedent is not entitled to any benefit from decedent's estate by will, by intestacy, as beneficiary of a revocable trust, life insurance contract, or otherwise. How does the property pass?

Answer 84

unlawfully or intentionally Property passes as if killer predeceased decedent. Jointly held property with right of survivorship passes half to killer and half as if killer predeceased decedent. * Note: negligence/ involuntary manslaughter doesn't count. * Note: acquittal at criminal law is NOT controlling because this is a civil standard -- preponderance of the evidence.

Question 85

Who has standing in a will contest?

Answer 85

Anyone whose share of the estate would increase if the will contest were to be successful.

Question 86

What are the grounds for will contest?

Answer 86

1. defective execution 2. valid revocation 3. lack of testamentary capacity 4. undue influence 5. fraud 6. mistake

Question 87

Testamentary capacity must exist _____, and need not continue to exist as of the day of death.

Answer 87

at the time a will is executed.

Question 88

To have capacity, a T must: _____.

Answer 88

Be at least 18 or an emancipated minor, AND must understand: 1. the nature and extent of his property 2. the persons who are the natural objects of his bounty and 3. the nature of his act/ the disposition being made

Question 89

The burden of introducing evidence that T lacked mental capacity is on the _______.

Answer 89

will contestant

Question 90

T/F: Adjudicated insanity necessarily means that teestatmentary capacity does not exist.

Answer 90

False. Evidence, but not conclusive. B/C: Test for whether a person needs a guardian is different that test for testatemtary capacity AND, jury could find that T executed during a lucid moment.

Question 91

What is an insane delusion?

Answer 91

A distinctive form of testatmenary incapacity: where T is otherwise sane, but the will (or a gift in the will) is the product of an insane delusion, having no basis in fact or reason, which T adhers to against all reason and evidence, and where the will (or a gift in the will) is the product of the insane delusion.

Question 92

To establish undue influence contestants must show that:

Answer 92

1. influence was exerted 2. effect of the influence was to overpower the mind and free will of the T 3. the product was a will that would not have been executed but for the influence. * Influence is presumed if the will makes a substantial gift to one who was in a confidential relationship with T and who was active in procuring the will.

Question 93

Influence is presumed if _______.

Answer 93

the will makes a substantial gift to one in a confidential relationship with T and who was active in procuring the will.

Question 94

T/F: Mere pleading, begging, nagging, cajoling, even threatening do not constitute unde influence.

Answer 94

True: the free will of the T must be destroyed.

Question 95

What is a no-contest clause? Is it enforceable in FL?

Answer 95

No-contest clause = "Any person who contests this will shall forfeit his legacy." No, not enforceable in FL.

Question 96

A successful contest on grounds of fraud requires:

Answer 96

That T have been willfully deceived as to 1. the character or content of the instrument 2. extrinsic facts that would induce the will or a particular disposition 3. with respect to facts material to a disposition. *If a T is fraudently prevented from creating a will, some courts will impose constructive trust against those who would take by intestacy in favor of those who would take had the will been made.

Question 97

What are the 3 types of will administration?

Answer 97

1. Disposition w/out administration: no real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills. 2. Summary Adminstration: estate less exempt property ($20,000 + autos) is less than $75,000. 3. Full administration: All other estates.

Question 98

A decedent's estate is administered _____. (where?)

Answer 98

in the county where the decedent resided at death

Question 99

Administration begins _____ (when?)

Answer 99

when any interested person (beneficiary, heir, or creditor) files a petition for administration.

Question 100

What is a caveator?

Answer 100

A person who is worried that an estate will be administered or a will admitted to probate without their knowledge and who file a caveat with the circuit court. * Creditors may file only after D's death. Others can file anytime.

Question 101

Once a caveat is filed, no will can be admitted to probate without _______. Additionally, notice must be given of any _______. Persons with a __________ the decedent's will are entitled to ______.

Answer 101

notice being served on the caveator petition for administration sufficient interest to contest D's will formal notice (by registered or certified mail)

Question 102

A personal representative will be appointed to ______.

Answer 102

manage the estate during administration

Question 103

The PR is issued ________ as evidence of his authority to administer the estate.

Answer 103

letters of administration

Question 104

It is the duty of the PR to:

Answer 104

collect the decedent's assets pay off any creditors and distribute the balance to those entitled to it

Question 105

Who is eligible to be a PR in FL?

Answer 105

Florida banks Persons 18 or older who have not been convicted of a felony If person not resident of FL, must be relative of decedent. (or spouse of relative)

Question 106

What is the order of preference for appointment of PR for a testate decedent? For intestate decedent?

Answer 106

Testate: 1. the person nominated in the will 2. the person selected by a majority of the will beneficiaries 3. beneficiary selected by the court Intestate: 1. surviving spouse 2. person selected by a majorityin interest 3. the heir nearest in degree

Question 107

Unless waived in the will, a PR (other than a bank) must file a ______ to secure the faithful performance of her duties.

Answer 107

bond

Question 108

Generally, a PR has __________ and may act ____ court authority in the exercise of those powers. 2 Exceptions:

Answer 108

all powers necessary to the proper administration of the estate without court authority Exceptions: 1. Court order is necessary to sell real property or to continue the operation of the decedent's unincorporated business for more than 4 months. 2. For wills executed before 10-1-1987, joint personal reps must act by UNANIMOUS consent. After that date, MAJORITY rule. A PR who objects in writing cannot be held liable for the actions of the majority.

Question 109

What are the PR's duties in re to creditors?

Answer 109

1. Publish a notice to creditors for 2 consecutive weeks in a newspaper in the county where the estate is administered. 2. PR must mail actual notice to all reasoanbly ascertainable creditors.

Question 110

What are the PR's duties in re to notice of administration?

Answer 110

PR must serve a copy of the notice of admin. on the decedent's spouse and beneficiaries. A copy must also be served on the trustee of the D's revocable trust (if any) and any person who might be entitled to exempt property.

Question 111

Within _____ days, of the issuance of his letters of administration, the PR must file a written inventory of the assets of the estate.

Answer 111

60 days

Question 112

What are creditors time limits?

Answer 112

If no notice: within 2 years of D's death. If notice is published, 3 months from the first date of publication. EXCEPT, creditors who are entitled to actual notice have 30 days from the date of the actual notice even if that extends beyond the normal 3 month period.

Question 113

What is the order of priority for creditors?

Answer 113

1. expenses of admin 2. funeral expenses up to $6000 3. medicaid claims and ebts/ taxes w/ preference under federal law 4. reasonable and necessary medical expenses for the last 60 days 5. family allowance 6. child support arrearages 7. post-death expenses of continuing decdent's business not to exceed assets of the business 8. all others