Wills and Estates

Question 1

Decedent

Answer 1

Dead person

Question 2

Descendant

Answer 2

children, grandchildren, etc.

Question 3

Ascendant/ancestor

Answer 3

parents, grandparents, etc.

Question 4

Collateral heir/kin

Answer 4

relatives who stem from a common ancestor, like siblings or cousins.

Question 5

Testator/Testatrix

Answer 5

the person whose assets are being disposed of by will

Question 6

Probate

Answer 6

the legal process by which a person’s assets and legal obligations are resolved, after death.

Question 7

Testamentary gift or devise

Answer 7

Assets disposed of by will.

Question 8

Devisee or beneficiary

Answer 8

one who inherits assets from an estate

Question 9

Specific gift

Answer 9

A specific devise of money or property to a particular individual

Question 10

Residual estate

Answer 10

All property in the estate that was not devised to particular individuals.

Question 11

Personal representative

Answer 11

The person who manages the probate process

FL does not use the term “executor”

Question 12

Intestacy

Answer 12

the distribution of assets upon death, when there is NO will or trust

Question 13

For intestacy, Florida law is attempting to follow what?

Answer 13

common sense

“If the average person died without a will, what would he probably want us to do with his stuff?”

Question 14

Per stirpes

Answer 14

When assets are distributed to descendants, they are split evenly at the first generational level.

Question 15

Florida follows what per stripes rule?

Answer 15

Strict per stirpes - minority position on distribution to descendants.

Question 16

Strict per stirpes

Answer 16

Assets are distributed under strict per stirpes, meaning at the first generational level, regardless of whether there are any living takers

Question 17

Normally, what is the Intestate share of surviving spouse? What key facts are we looking for that would reduce spouse’s share?

Answer 17

In many cases, the surviving spouse will inherit the entire estate when there is no will or trust. We are on the lookout for non-marital children (or other descendants) on either side.

Question 18

Scenario 1: (No descendants): There is a surviving spouse and no descendants.

Answer 18

Surviving spouse takes the entire estate.

Question 19

Scenario 2: (Only marital descendants): There is a surviving spouse and all descendants (children, grandchildren) are from the marital couple.

Answer 19

Surviving spouse takes the entire estate.

Question 20

Scenario 3: (Dead person has children outside the marriage): There is a surviving spouse and the decedent has descendants from outside of the marriage.

Answer 20

Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.

NOTE: This is true, irrespective of whether there are also marital descendants. The marital descendants will benefit along with the non-marital descendants.

Question 21

Scenario 4: (Spouse has children outside the marriage, Dead person has marital children only): There is a surviving spouse, all of the descendants of the decedent are from the marriage, and the spouse has descendants from outside of the marriage.

Answer 21

Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.

Here, we don’t want to give 100% to the spouse, because she will provide for her non-marital descendants.

Question 22

Scenario 5: (Spouse has kids outside the marriage, Dead person has no descendants). There is a surviving spouse, the decedent has no descendants, and the spouse has some descendants from outside the marriage.

Answer 22

Surviving spouse takes the entire estate. The decedent has no descendants that need to be protected, so we give 100% to the spouse.

Question 23

Whatever assets are not given to the surviving spouse are distributed to the other heirs in the following order, until a taker is found:

Answer 23

1. Descendants, per stirpes (which means strict per stirpes!);
2. Parents;
3. Brothers and sisters and their descendants, per stirpes;
4. Grandparents and their descendants, per stirpes (one-half to maternal, one-half to paternal);
5. Kindred of the last deceased spouse;
6. Escheat to the state.

Question 24

Adopted children are treated _________ as natural children of the adopting parents. Adopted children (DO/DO NOT) inherit from their natural families.

Answer 24

Adopted children are treated THE SAME as natural children of the adopting parents. Adopted children DO NOT inherit from their natural families.

Question 25

EXCEPTION: Children adopted after a natural parent _______________ can still inherit from the natural parent’s _______________.

Answer 25

EXCEPTION: Children adopted after a natural parent DIES can still inherit from the natural parent’s FAMILY.

Question 26

Non-martial children/Children born out of wedlock are heirs of the _______________ but not of the _______________.

Answer 26

Non-martial children/Children born out of wedlock are heirs of the MOTHER but not of the FATHER.

Question 27

Name the 3 exceptions to the rule that non-martial children are not heirs of their father.

Answer 27

1. A natural parent participated in a marriage ceremony (before or after birth), even if that marriage turned out to be void; or
2. The father acknowledged paternity in writing; or
3. Paternity was established by court adjudication (e.g., by paternity test).

Question 28

Half-bloods

Answer 28

Half-bloods are brothers and sisters who have only one common parent.

Question 29

For purposes of inheritance from collateral-kin (e.g. siblings), half-bloods take _____________as much as whole bloods.

Answer 29

For purposes of inheritance from collateral-kin (e.g. siblings), half-bloods take HALF as much as whole bloods.

Question 30

What is a will?

Answer 30

A will is an instrument executed with certain formalities, which is “testamentary in character.”

Question 31

What does executed mean?

Answer 31

“Executed” means “signed”. When you “execute” a contract, a will, or other legal document, it means you finalize the signing process. Execution does not mean performance.

Question 32

When is a will revocable? When is it operative?

Answer 32

It is revocable during life and operative upon death.

Question 33

In Florida, how many witnesses are required to witness testator sign will? Can they be minors?

Answer 33

In Florida, a will must be signed at the end by the testator in the presence of 2 witnesses. The witnesses can be minors!

Question 34

How must witnesses sign the will?

Answer 34

The witnesses must sign in the testator’s physical presence and in the physical presence of each other.

Question 35

How can the testator sign the will?

Answer 35

The testator can sign in front of witnesses, or alone without witnesses present, if she acknowledges her signature later to the witnesses.

Question 36

What if testator is unable to sign?

Answer 36

If the testator is unable to sign, someone else can sign her name for her. This must be done at the testator’s direction and in her presence.

Question 37

Does a notary need to be present or sign the will?

Answer 37

Ordinarily, wills do NOT require the presence or signature of a notary. However a notary signature is required in some specific circumstances such as a self-proving will or an electronic will

Question 38

At common law, can a beneficiary act as a witness?

Answer 38

At common law, a beneficiary cannot act as a witness to a will. We call them an interested witness because they have an interest in the outcome of the will (and an incentive to lie).

Question 39

In Florida, can a beneficiary act as a witness?

Answer 39

Florida has abolished the common law rule. An interested witness can still inherit under the will.

Question 40

What is an oral will?

Answer 40

An oral testamentary statement.

Question 41

What is a holographic will?

Answer 41

A hand-written testamentary instrument, signed by the testator, with NO witnesses

Question 42

Does FL recognize oral or holographic wills?

Answer 42

Florida does NOT recognize oral or holographic wills under any circumstances.

However, a hand written will that complies with all other formalities (signed and witnessed) is acceptable! There is just no “loosened” standard for hand-written wills.

Question 43

When can an extrinsic document be incorporated by reference into a will?

Answer 43

An extrinsic document can be incorporated by reference into a will if:

1. It exists at the time of execution;
2. It is sufficiently described in the will; and
3. The will manifests intent to incorporate the document.

Question 44

What is the one exception to the requirement that the document needs to exist at the time of execution to be incorporated by reference?

Answer 44

EXCEPTION: There is one scenario where you can incorporate an extrinsic document that does not exist at the time of execution. The testator may produce a list of specific tangible personal property to be distributed to specific persons. The testator may incorporate this list into his will, and thereafter create or modify this list at any time.

Question 45

What does a Self-proving affidavit do?

Answer 45

A self-proving affidavit removes the need to bring witnesses to court to authenticate the signatures at probate.

Question 46

What are the requirements to execute a self-proving affidavit?

Answer 46

The testator and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary public reciting that the testator declared to the witnesses that the instrument was her will, and that the testator and the witnesses all signed in the presence of each other, present at the same time.

Basically, it is an affidavit affirming that the will was executed properly.

Question 47

When can you execute a self-proving affidavit?

Answer 47

The affidavit can be executed at any time subsequent to the will’s execution, but standard practice is to execute both the will and the self-proving affidavit in one ceremony.

Question 48

What is the benefit of a self-proving affidavit?

Answer 48

With a self-proving affidavit, it is no longer necessary to bring the witnesses to court at the time of probate. The affidavit serves as authentication of their signatures. However, if the will is lost or destroyed, we might still need witnesses to testify as to the contents of the will.

Question 49

When is a self-proving affidavit valid? Is a self-proving affidavit required for the will to be valid?

Answer 49

Self-proving affidavits must be notarized. However, the will itself does not require notarization. A will without a self-proving affidavit is still valid, and does not require a notary.

Question 50

Can the witness signatures on the affidavit serve as signatures for the will?

Answer 50

The witness signatures on the self-proving affidavit CAN serve as the signatures to the will itself (for example, if the witnesses accidentally forgot to sign the will and only signed the affidavit).

Question 51

Can the notary’s signature on the affidavit serve as a witness signature for the will?

Answer 51

The notary’s signature can also serve as one of the witness signatures, if the notary was otherwise qualified to serve as a witness.

Question 52

What are Codicils? What is required to execute one?

Answer 52

Codicils modify previously executed wills. They require the same formalities as a will.

Question 53

Under the doctrine of republication, when is a will deemed effective? Why is this date important?

Answer 53

Under the doctrine of republication, a will is deemed effective as of the date of the last codicil. This date can be very important for determining whether a spouse or child is pretermitted

Question 54

How can a testator revoke a will by written instrument?

Answer 54

The testator may revoke all or part of a will by codicil or new will.
If by codicil, it must be executed with the same formalities as a will.

Question 55

What happens if the will/codicil does not expressly revoke the earlier will?

Answer 55

If the will/codicil does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistencies.

Question 56

How can a testator revoke a will by physical act?

Answer 56

A will or codicil may be revoked by burning, tearing, canceling, defacing, or otherwise destroying it with the intent to revoke. The intent must be simultaneous with the act.

Question 57

Can someone else revoke a will by physical act?

Answer 57

The physical act may be performed by another, if done at the testator’s direction and in his presence. Even hearing the sound of ripping paper over the phone is not sufficient.

Question 58

If revocation is by physical act of defacing the language, what must actually be crossed out?

Answer 58

If the physical act is defacing of the language, the defacing act must cross out actual words, not just blank areas.

Question 59

Does Florida allow partial revocation by physical act?

Answer 59

Florida does not allow partial revocation by physical act. If the testator strikes a clause of the will, it has NO effect.

Question 60

Pretermitted spouse

Answer 60

Spouse married testator after will was already executed

Question 61

In FL, what does pretermitted spouse get? Can this right be waived?

Answer 61

In Florida, the pretermitted spouse takes an intestate share, and the remainder (if anything) is disposed of by will. This right can be waived by a pre or postnuptial agreement.

Question 62

pretermitted children

Answer 62

If a testator has a child (born or adopted) after executing his will, the child is entitled to a share of the testator’s estate.

Question 63

What protection does a pretermitted child get? What happens to the gifts to other people?

Answer 63

The omitted child is entitled to an intestate share of the estate (per stirpes). Gifts to other persons are abated to make this gift.

Question 64

When does a pretermitted child NOT inherit?

Answer 64

The pretermitted child does not inherit under the will if:

1. The decedent had one or more children when the will was executed, and
2. Substantially all of the decedent’s estate was given to the other parent of the pretermitted child.

Question 65

What happens to will upon divorce?

Answer 65

Divorce revokes any portions of the will pertaining to the ex-spouse. All other portions of the will remain in effect. Whatever was to be given to the ex-spouse passes to the residual estate.

Question 66

How do you revoke a copy of a will?

Answer 66

If the will has been executed in duplicate (there are two exact “duplicates”, both signed and witnessed properly), an act of revocation performed upon either duplicate of the will constitutes revocation of both duplicates.
However, an act of revocation on an unexecuted copy of the will or a photocopy is not revocation.
But a court may impose a constructive trust upon the estate, if the testator believed that his action was a revocation.

Question 67

How do you reinstate a revoked or invalid will?

Answer 67

If a will has been revoked, or if it is invalid for any other reason, it may be republished and made valid again by:

1. Re-execution of the will according to proper will formalities (e.g., signing the revoked will again with witnesses), or
2. Execution of a codicil republishing it, according to proper will formalities.

Question 68

What happens if a will cannot be found at the time of death?

Answer 68

If a will cannot be found at the time of death, there is a presumption that it was revoked by destruction

Question 69

Can the presumption that a lost will was revoked by destruction be overcome? What would you need to prove to do this?

Answer 69

The presumption can be overcome, and the will can still be offered for probate.
The contents of the will must be proved by:
1. Testimony of 2 disinterested witnesses, OR
2. One disinterested witness and a correct copy

**need to get witnesses as proof even if there is an afiidavit

Question 70

What happens if a beneficiary dies before the testator?

Answer 70

When a beneficiary dies before the testator, the gift has lapse. A lapsed gift passes to the residue of the estate and is divided among the beneficiaries entitled to the residue

Question 71

What are the 2 scenarios where the gift does not lapse?

Answer 71

1) The will says what happens if the beneficiary is deceased: This could be done by identifying an alternative beneficiary, or with language like “To Glen or his heirs and assigns.” In this case, we follow the will’s direction and give the gift to someone else.
2) The beneficiary is a grandparent or descendant of a grandparent: In this case, the “anti-lapse statute” applies (even if no intention was expressed in the will). The gift will automatically pass to the estate of the dead beneficiary.

Note: specific language in the instrument always overrides the anti-lapse statute. If the will tells us what to do, we do it (even if the beneficiary was a grandparent or descendant).

Question 72

What happens if the gift described in the will is no longer in the testator’s estate at the time of death? Will the court look into why the items is gone? What if the item was sold, destroyed, or condemned?

Answer 72

When the item is no longer in the testator’s estate at the time of death, the gift is adeemed. That means it’s gone and the beneficiary is probably out of luck.
This only applies to specific gifts of property. Gifts of money cannot be adeemed.

Generally, the court will not inquire as to why the item was not found in the testator’s possession anymore. Maybe he sold it, gave it to someone else, destroyed it, etc.

However, if the item was sold, destroyed, or condemned, the beneficiary may be entitled to the proceeds of the sale or insurance.

Question 73

what happens if the decedent leaves a will, the spouse is not pretermitted, and the gift to the surviving spouse is small or nothing?

Answer 73

A surviving spouse does not need to accept the gift given in her dead spouse’s will.
Instead, the surviving spouse can choose to take an elective share equal to 30% of her spouse’s “elective estate.”
The elective estate is comprised of the decedent’s probate estate and some non-probate assets, like life insurance, and accounts with other people named as beneficiaries.

Question 74

What does the spouse get in these 3 scenarios?

1. If there is no will?
2. If there is a will and the spouse is pretermitted?
3. If there is a will, but the gift to the spouse is small or nothing?

Answer 74

1. If there is no will: The spouse takes an intestate share.
2. If there is a will and the spouse is pretermitted: The spouse takes an intestate share.
3. If there is a will, but the gift to the spouse is small or nothing: The spouse can take an elective share instead of the gift.

Question 75

Family allowance

Answer 75

The surviving spouse and lineal heirs are entitled to an allowance of $18,000 during probate administration, to cover living expenses.

This is in addition to amounts otherwise passing to the spouse and children

Question 76

Exempt Personal Property Set-Aside

Answer 76

The surviving spouse or surviving minor children are entitled to up to $20,000 of household furnishings, two of the decedent’s personal motor vehicles, and all qualified tuition programs.

This is in addition to amounts otherwise passing to the spouse and children

Question 77

What things related to inheritance can be waived in martial agreements?

Answer 77

Everything relating to inheritance can be waived by a spouse in a valid prenuptial or postnuptial agreement.
That includes gifts by will, intestacy, elective share, family allowance, homestead protections, etc.

Question 78

What financial disclosures are required for prenuptial and postnuptial agreements?

Answer 78

Prenuptial agreements: The spouses are not required to provide financial disclosures.

Postnuptial agreements: The spouses are required to provide accurate financial disclosures.

Question 79

Personal representative

Answer 79

The personal representative is responsible for advancing the decedent’s estate through the probate process.

Question 80

For a testate decedent, the personal representative will be (in this order): NSA

Answer 80

N: The person named in the will, or
S: Person selected by a majority in interest of persons entitled to the estate, or
A: any devisee

Question 81

For an intestate decedent, the personal representative will be (in this order): SSN

Answer 81

S: Surviving spouse, or
S: Person selected by a majority in interest, or
N: Nearest heir

Question 82

Qualifications required to act as personal representative

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Answer 82

(A)dult over 18

(M)ental capacity

Not a (F)elon

(F)lorida resident OR (F)amily member

Question 83

Who is a “family member” for the personal representative test? - 4 categories of people:

Answer 83

(1) Anyone related by “lineal consanguinity” to the decedent.
(2) A spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person (includes spouse’s parents, spouse’s child, but not spouse’s sibling)
(3) A legally adopted child or adoptive parent of the decedent; or
(4) The spouse of a person otherwise qualified under this section.

Question 84

Lineal consanguinity

Answer 84

Lineal consanguinity means people above and below on the family tree.
ex: parent, grandparent, child
A sibling is not lineal.

Question 85

Order of payment to creditors in probate:

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Answer 85

1) Expenses of Administration (attorneys and personal reps.)
2) Funeral expenses up to $6000
3) Governmental debts: Debts and taxes having precedence under federal law, medic aid claims and claims in favor of the state for unpaid court costs, fees, or fines.
4) Expenses of last Illness
5) Family allowance (up to $18k for living expenses during probate)
6) Arrearages from court-ordered Child support
7) Decedent’s Business debts acquired after his death, to the extent of business assets.
8) All other claims (including the gifts of the will, intestacy, or trusts)

Question 86

What are the 2 types of simplified probate?

Answer 86

Summary administration and Ancillary administration

Question 87

In what 2 situations does Florida law provide for summary administration?

Answer 87

Available if:

1. The probate estate has value of less than $75,000 OR
2. The decedent has been dead for more than 2 years.

Question 88

What are examples of non-probate assets?

Answer 88

homestead, joint tenancies, and life insurance.

Question 89

When is Ancillary administration available?

Answer 89

Available only when a non-resident dies leaving assets in Florida.

Question 90

When does probate end?

Answer 90

Probate ends when the personal representative is discharged.

Question 91

When do objections to probate need to be raised?

Answer 91

If any person has an objection to the probate proceedings (testate or intestate), he/she needs to come forth before the personal representative is discharged.

Question 92

What happens when the personal representative is discharged?

Answer 92

Once the PR is discharged, probate is final – even if significant new evidence is discovered, like fraud or a conflicting will/codicil

Question 93

When can you reopen probate?

Answer 93

we may reopen probate if new assets are discovered.

Question 94

Does FL allow for the use of electronic wills, codicils, and signatures?

Answer 94

Yes, Florida law allows the use of electronic wills, codicils, and signatures

Question 95

How is an electronic will similar to a paper will?

Answer 95

An electronic will (or codicil) is executed, modified, and revoked in a similar manner as a paper will.
However, some of the formalities of execution are different

Question 96

What is an electronic signature?

Answer 96

An electronic signature is an electronic sound, symbol, or process that is made by a person with the intent to sign and is attached to or logically associated with a document. The person must also understand that he or she is electronically executing the document

Question 97

What are the requirements for the virtual signing ceremony and physical presence of witnesses and notary?

Answer 97

Florida law allows some exceptions to the “physical presence” requirement for witnesses. Witnesses can be present virtually, by means of an audiovisual conference (like skype or FaceTime).

This virtual signing ceremony must be supervised by a notary public, as part of an online notarization session. Notary required if witness to appear and sign electronically. Notary is also allowed to appear and sign electronically

This session must be recorded.

The witness must hear the other signers state that they have signed the document.

The testator must also answer several questions, indicating their age, mental state, location, and the presence of others in the room.

Question 98

What happens if the testator is a vulnerable adult and what does that phrase mean?

Answer 98

If the testator is a “vulnerable adult”, electronic signatures and remote witnesses are invalid. A vulnerable adult is a person 18 years or older whose ability to perform the normal activities of daily living is impaired.

Question 99

How do you revoke an electronic will or codicil? What is the standard of proof?

Answer 99

A testator (or some other person in the testator’s presence and at the testator’s direction) may revoke an electronic will by deleting, cancelling, rendering unreadable, or obliterating it with the intent and for the purpose of revocation.
Revocation of an electronic will in this manner must be proven by clear and convincing evidence (a higher standard than paper wills).
An electronic will can also be revoked by a subsequent will or codicil (in the same manner as a paper will).

Question 100

What happens if the recording of the online notarization session is lost?

Answer 100

If that audiovisual recording cannot be produced, the electronic will is treated as lost or destroyed.

Question 101

What happens if the personal representative can prove that the person must be dead? What is the standard of proof?

Answer 101

If the personal representative can prove that the person must be dead, either by direct or circumstantial evidence, a court can make a ruling of death and probate can proceed. The standard is a preponderance of the evidence.

Question 102

What happens if the personal representative has no evidence that the person is dead?

Answer 102

If the personal representative does not have any evidence to offer on the matter, The Florida Probate Code provides that a person is presumed to be dead if he is absent from his last known domicile for 5 years.

Question 103

What is the Slayer statute? What mental state must the killer have? What is the standard of proof? Must the alleged killer be convicted?

Answer 103

The killer forfeits all rights in the victim’s estate. The property passes as if the killer had predeceased the victim.
The killer must have acted with intent. Negligence is insufficient.
Joint tenancies and tenancies by the entirety are severed and treated as tenancies in common. Homestead protections are forfeitied.
The evidentiary standard is “greater weight of the evidence.” This is lower than the criminal standard.
This rule can take effect even if the alleged killer was acquitted

Question 104

Advancement

Answer 104

An advancement is a gift made to a future heir, with the intent that the gift be applied against the heir’s inheritance

Question 105

when are Inter vivos gifts considered advancements?

Answer 105

Inter vivos gifts are not considered advancements, unless the intention to make an advancement is declared in a contemporaneous writing by the decedent, or acknowledged in writing by the heir.

Question 106

To what decedents do the rules for advancement apply?

Answer 106

The rules on advancements apply to testate and intestate decedents.

Question 107

Do you have to accept an inherited gift? What do you have to do to refuse the gift?

Answer 107

You are not obligated to accept an inherited gift.

You can refuse the gift by making a disclaimer

Question 108

When are disclaimers valid?

Answer 108

To be valid, the disclaimer must be:

(1) in writing,
(2) describe the interest or power being disclaimed,
(3) be signed,
(4) witnessed and notarized, and
(5) be delivered to the appropriate party.

Question 109

When are you not allowed to disclaim a gift?

Answer 109

In some circumstances, you are not allowed to disclaim a gift:

1. If you have accepted, assigned, encumbered or sold the gift, you cannot disclaim it.
2. If you are insolvent you cannot disclaim a gift (aka you owe more $ than you got)

Question 110

What is a No-contest clauses? is it enforceable?

Answer 110

A provision in a will that attempts to penalize a beneficiary for contesting the validity of will is unenforceable

Question 111

What is a caveat and who can file it?

Answer 111

Florida allows “interested persons” to file a notice with the court called a “caveat.” Once the caveat is filed, the caveator is entitled to formal notice of all probate proceedings

Question 112

When can creditors file a caveat?

Answer 112

Creditors may only file a caveat after the debtor’s death.

Question 113

When can all other interested, non-creditor persons file a caveat?

Answer 113

All other interested persons may file a caveat before or after death

Question 114

T/F: Creditors have a limited time to make their claims against a decedent’s estate.
If the creditor is unaware of the probate proceedings, the creditor may not file its claim in time.

Answer 114

True: Creditors have a limited time to make their claims against a decedent’s estate.
If the creditor is unaware of the probate proceedings, the creditor may not file its claim in time.

Question 115

What is a simultaneous death?

Answer 115

Spouses either died simultaneously, or the doctors cannot determine who died first

Question 116

What law do we apply when there is a simultaneous death? How does the property pass under this law?

Answer 116

We apply the Uniform Simultaneous Death Act (USDA). The USDA only applies if the deaths were simultaneous or the order of death cannot be determined. If we can prove that one spouse survived by even one second, we do not apply USDA.

The property of each decedent passes as if he/she had survived the other.

Question 117

Do you have to accept the USDA?

Answer 117

You don’t have to accept the USDA. If the governing will or trust says that the USDA shall not apply, the courts will not apply it even if there is a simultaneous death