Wills and Trusts Flashcards
How do I determine someone’s death?
- Death certificate
- Record or report from a gov agency, or
- A person is absent from their last known domicile for a continuous period of 5 years with no explanation after a diligent search is presumed dead.
Definition of Caveat
Any interested person (heir) who believes that an estate will be administered to probate without their knowledge may file a caveat with the court.
- Can be filed by a person before or after the death.
- NOTE: If caveator is a nonresident and is not represented by an attorney licensed in FL, person must designate a person residing in the county where the caveat is filed as their agent for service.
- NOTE: Creditors may only file after the death.
“Beneficiary”
= an heir at law in an intestate estate or a devisee in a testate estate.
- In the case of a devise to a trust for trustee, the trustee is the beneficiary oof the estate/
“Collateral Heir”
= a heir who is related to the decedent through a common ancestor but who is not an ancestor or descendant (not a parent/grandparent or child) of the descendant.
- brother, sister, cousin.
“Descendant”
= children, grandchildren
“Devise”
- Noun = a testamentary disposition of real or personal property.
- Verb = to dispose of real or personal property by way of a will or trust.
- NOTE: A devise is subject to charges for debts, expenses, and taxes as provided in the code or the will or trust.
“Interested Person”
- Any person who may reasonably expected to be affected by the outcome of the proceeding;
- A personal representative of the state (fiduciary appointed by the court, executor); and
- Trustee of a trust.
- NOTE: A beneficiary who has received complete distribution is no longer an interested person.
“Probate of a Will”
- Probate = Latin “to walk forward”
- Means to take all steps necessary to establish the validity of a will and to admit the will to probate.
“Protected Homestead”
- = the property on which at the death of the owner inures to the owner’s surviving spouse or heirs under the FL Constitution.
- Just means that it passes to the spouse or heirs.
- If married, passes to spouse.
- If not married or widowed, passes to lineal descendants (children)
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NOTE: Real property owned in tenancy by the entireties OR in joint tenancy with rights of survivorship is NOT PROTECTED HOMESTEAD.
- Kind of misleading. Homestead can of course be passed when spouses won property in tenancy by entirety. But when you die, it passes immediately too spouse fee simple absolute. If joint tenancy, passes by fee simple absolute. Just means that we’re not worried about homestead property owned in this way because its going to automatically pass (inure) to them.
“Residuary Devise”
- Means a devise of the assets of the estate which remain after the provision for any devise which is to be satisfied by reference to specific property, fund, sum, or statutory amount.
- If the will contains no devise which is to be satisfied by specific property, statutory amount, etc., “residuary devise” or “residue” means a devise of all assets remaining after satisfying the obligations of the estate.
- “Whatever is left over”; “any property that remains that I didn’t give away.”
- NOTE: If no residue, passes via intestacy statute.
“Will”
- A testamentary instrument, including a codicil (supplement to a will)
- Is executed by a person in a manner prescribed by law,
- Disposes of the person’s property on or after his death.
- Includes an instrument which merely appoints a personal representative or guardian or revokes or revises another will.
- Electronic wills are allowed.
“Collateral Heirs/Descendants”
= people who descend from the same common ancestor as the decedent, but do not descend directly from descendant.
- siblings, cousins, nieces, nephews, aunts, and uncles.
Spouses Share of Intestate
Intestate = no will.
- If no surviving descendant of the decedent:
- = surviving spouse gets entire estate.
- If decedent survived by one or more descendants, ALL OF WHOM ARE ALSO DESCENDANTS OF THE SURVIVING SPOUSE and SURVIVING SPOUSE HAS NO OTHER DESCENDANTS:
- = surviving spouse gets entire estate.
- If one or more surviving descendant of decedent but they are NOT lineal descendants of surviving spouse
- = surviving spouse gets ½ of the estate, descendants unrelated to spouse gets other half.
- If one or more surviving descendants of decedents, all of which are all descendants of the surviving spouse, and surviving spouse has one or more descendants who are NOT lineal descendants of the decedent
- = surviving spouse gets ½ of estate.
Share of Other Heirs (How property passes)
= if no surviving spouse:
- Descendants (kids, grandkids)
- Parents equally
- Siblings, or then to children of pre-deceased siblings (nieces/nephews)
- Grandparents (maternal and paternal, ½ to each)
- Aunts/Uncles, or then to children of pre-deceased aunts/uncles (cousins)
**Inheritance Per Stirpes
NOTE: Be sure to state that FL = Strict per stripes.
Any intestate property not passing to the decedent’s surviving spouse is passed per stripes to his descendants, or if his descendant predeceased him, to their descendants.
**Half-Blood Collateral Descendants
- NOTE: Only applies in intestate to collateral descendants (siblings, nieces, nephews, cousins, aunts, uncles)
- Half-blood siblings share one but not both parents.
- A half blood sibling will take half a much as a whole blood sibling.
- If all are half-bloods, they shall have whole parts.
Ex. Three brothers, A, B, and C. A and C are full siblings, B and C are half-siblings. C dies intestate, no direct decedents. 100% of his estate goes to his siblings A and B. However, A will get twice as much of C’s estate as B. (A gets ⅔, B gets ⅓.)
After-Born Heirs
Heirs of the descendant conceived before his or her death, but born thereafter, inherit intestate property as if they had been bored in the decedent’s lifetime.
Intestate Succession: Adopted Kids and Kids Born Out of Wedlock
Adopted Kids
= Treated as a natural child of the adopted parents AND as natural kindred of the adoptive parent’s family.
- NOTE: Will no longer be able to inherit from their natural family, and their natural family will no longer be able to inherit from them.
- NOTE: If a person adopts the natural child of his/her spouse – child can still inherit from natural parent as well as step parent and their families.
- NOTE: If adopted by a close family member (sibling, aunt/uncle, grandparent) can still inherit from their natural parents and vise versa.
Kids Born Out of Wedlock
= will always inherit from their natural mother and vise versa. Will not inherit from its natural father unless:
- Natural parents participated in a marriage ceremony before or after the birth EVEN IF the attempted marriage is void (Ex. Fact patterns when father was already married to someone)
- Paternity was adjudicated before or after the death of the father (DNA or blood test); OR
- Paternity is acknowledged in writing by the father.
Right to Elective Share
= a portion of the decedent’s estate that his surviving spouse is entitled to take regardless of the terms of the will.
- The surviving spouse of a person who dies domiciled in Florida has the right to an elective share of the decedent’s estate. Rule 732.201
- The elective share is 30% of the elective estate. Rule 732.2065
(NOTE: NOT THE PROBATE ESTATE - THEY ARE NOT THE SAME THING).
Elective Estate = Decedent’s probate estate plus additional assets outside of the probate estate. Includes decedent’s interest in property passing by right of survivorship, death benefits paid under retirement plans, etc.
- TIMING: Must be filed within 6 months after of service of the Notice of Administration (filed by the personal rep to let creditors and heirs know they are probating the estate) OR 2 years after decedent’s death, whichever is earlier. Rule 732.2135
Pretermitted Spouse
NOTE: Pretermit = to omit or fail to mention.
= when a person marries after making a will and dies leaving the surviving spouse, spouse shall receive a share of the estate equal to what he/she would have received if the decedent had died intestate, UNLESS:
- Pre-nup or post-nup agreement waiving any rights they may have;
- Spouse is provided for in the will; OR
- The will contains an intention not to make provision for the spouse.
NOTE: In reference to #3, surviving spouse can elect to take an elective share of 30% of the elective estate.
Pretermitted Children
= when decedent omits to provide by will for any children born or adopted after making the will. Child will receive a share of the estate equal in value to what he would have received if decedent died intestate, UNLESS:
- It appears from the will that the omission was intentional; OR
- Decedent had one or more children when the will was executed and devised substantially all of the estate to the parent fo the pretermitted child and that parent survived the decedent. (Child gets nothing because it is expected that the surviving parent will provide to that child)
How Does Homestead Property Pass?
- Decedent Owns Homestead Solely in Decedent’s Name: Homestead is passed in the same manner as intestate property. (NOTE: Usually the fact pattern on the exam).
- If owned as joint tenants in entirety: Spouse gets property in fee simple absolute.
- If owned as joint tenants with right of survivorship (ex. son): Joint tenant takes in fee simple absolute.
- If decedent is survived by spouse and one or more descendants: Surviving spouse gets a life estate in the homestead, with a vested remainder to the descendants in being at the time of the decedent’s death, and will pass strict per stirpes.
- NOTE: In lieu of a life estate, the surviving spouse may elect to take an undivided ½ interest in the homestead as tenants in common with the surviving descendants of the decedent, and will pass strict per stirpes.
Advancements
= A gift made by the decedent during his or her life and given to a potential heir with the intention that the gift be in place of or part of that heir’s share of the estate.
MUST BE IN WRITING!
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A gift will be deemed an advancement if:
- The delivery of the gift is accompanied by a writing designating that the gift is to be counted against the recipient heir’s share of the intestate estate; OR
- The recipient heir acknowledges in writing that the gift is an advancement of his share of the intestate estate.
- NOTE: The value of the advancement is determined by the value of the property AT THE TIME THE ADVANCEMENT WAS MADE, NOT AT THE TIME OF DECEDENT’S DEATH.
Advancements: Hotchpot Estate
Hotchpot = the process of determining the value of the decedent’s intestate estate and the value of the intestate share of the heir who has received and advancement.
Hotchpot = the value of the probate estate + value of the advancement.
- To determine the advanced heir’s share of the hotchpot estate:
- Value of probate estate + value of advancement = hotchpot estate.
- Value of hotchpot estate / number of surviving heirs = share of each beneficiary .
- Share of each beneficiary - value of advancement received = advanced heir’s share of intestate estate.
Simultaneous Death
If it is not possible to determine which of two persons died first, the property of each decedent will pass as if the other died first.
If proven that one spouse survived the other by even a few minutes, the decedent will inherit from the other as any surviving heir.
NOTE: If the beneficiary of a life insurance policy and the insured died simultaneously, the proceeds of the policy are distributed as if the INSURED survived the BENEFICIARY.
Slayer Statute
A person who unlawfully and intentionally kills the decedent forfeits all death-related benefits that they would have derived from the decedent.
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Slayer is treated as if they predeceased the decedent.
- Child of the slayer may still take the killer’s share by representation.
- Applies to: Intestate distributions, elective shares, shares of pretermitted spouse or child, survivorship interests in joint tenancies and tenancies in the entirety and life insurance proceeds.
- Must have conclusive proof (i.e., a murder conviction) or, in the absence of a conviction, court finds that slayer did it by a preponderance of the evidence.
Spousal Rights When Marriage is Obtained by Fraud, Duress, Undue Influence
- In General: Spouse who is found to have procured a marriage through frauds, duress, or undue influence is NOT entitled to rights for benefits under the FL Probate code.
- Applies to: Right to inherit by intestacy, right to an elective share, homestead rights and protections, and rights as a pretermitted spouse.
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EXCEPTIONS:
- When the surviving spouse who procured marriage by fraud/duress/undue influence is provided for by name in the document.
- When the surviving spouse and decedent voluntarily lived together with knowledge of the facts constituting the fraud, duress, etc., OR
- the marriage was subsequently ratified by both spouses.
Disclaimers
= a heir may disclaim an intestate share. If properly made, the property will then pass as if the disclaiming heir had predeceased the decedent (can still pass to the disclaiming heir’s descendants).
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NOT PERMITTED IF:
- Beneficiary has already accepted the benefit of gift;
- Beneficiary has voluntarily assigned, transferred or encumbered the property;
- Property has been sold pursuant to judicial process; or
- The beneficiary is dissolvent.
- Disclaimer become effective on date of decedent’s death.
- When heir is a minor, disclaimer can be made by a parent or guardian unless the guardian would take as a result of the disclaimer.
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REQUIREMENTS:
- In writing
- Identifies the property to be disclaimed
- Signed by disclaiming heir
- Is witnessed and acknowledged.
- Should also be recorded in the county in which the property is located.
Testamentary Intent
(Testacy: Execution of Wills)
At the time of execution, testator must have testamentary intent. (Present intent to make a will at the time of execution.)
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Conditions Precedent: Distinguished from a condition precedent; lacks the prerequisite intent. (Ex. A will that provides it shall go in effect “if I die as a result of the surgery next week”)
- HOWEVER If the court considers language to merely be an expressions of the testators motive for executing the will, the condition precedent will be considered as having the prerequisite intent. (Ex. Because I might die as a result of the surgery next week, I execute this will.”)
Will Requirements
(Testacy: Execution of Wills)
- In writing, signed at the end by the testator (or another person who signs the testator’s name in the testator’s presence);
- Can be a symbol for initials.
- Other person, as testator’s agent, can also serve as a witness.
- Signature need not be at the actual end of the document; just at the end oof the process of executing a will.
- Must be signed in the presence of at least two witnesses;
- Any competent person; Need not be 18 or older, just able to understand and observe the process.
- Need not be disinterested.
- “In the presence of”: Line of Sight test, or Conscious Presence test.
- Must be signed by each witness in the presence of the testator and at least one other witness.
Out-of-State Wills
(Testacy: Execution of Wills)
Out-of-State wills recognized in FL if they satisfied the will requirements of the state it was executed in.
TWO EXCEPTIONS:
- Holographic wills (handwritten, signed wills that are not witnessed) not recognized / admitted into probate even if valid in the state is was executed in.
- Nuncupative (oral) wills not recognized / admitted into probate even if valid in the state it was executed in.
Testator Competency
(Testacy: Execution of Wills)
- Testator must be at least 18 years or older OR be an emancipated minor
- Testator must be of sound mind: TEST: MUST HAVE KNOWLEDGE OF:
- The nature and extent of the testator property;
- The persons who are the natural objects of testator’s bounty (huh??)
- The dispositions the testator is making; AND
- How the above elements related to form an orderly plan for disposition of the testator’s property.
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Testator presumed to be of sound mind, but capacity may be challenged.
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GROUNDS FOR CHALLENGING COMPETENCY:
- Will was produced by an insane delusion (must prove testator believed in non-existent facts)
- Physical and Mental Infirmity: Does not by itself negate testator capacity as long as testator still understands nature of his estate and disposition.
- Undue Influence: (NOTE: Proving a confidential relationship creates a presumption of undue influence). See next slide.
- Fraud
- Mistake
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GROUNDS FOR CHALLENGING COMPETENCY:
Challenging Capacity: Undue Influence
(Testacy: Execution of Wills)
FIRST: Prove there was a confidential relationship.
(NOTE: If a confidential relationship is proven, it creates a presumption of fraud.)
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Confidential Relationship TEST: Whether the person allegedly exercising undue influence:
- Was a substantial beneficiary of the will; OR
- Had a confidential relationship with the testator AND was actively involved in procuring the will.
SECOND: Determine whether there was undue influence:
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TEST: Whether a party exercised control over the mind of the testator so as to overcome testator’s free will and cause the testator to do what he/she would not have otherwise done but for that control.
1. NOTE: When trying to prove undue influence in absence of a confidential relationship, look for a suspicious circumstance coupled with an “unnatural gift” (ex. a non-relative favored over a close relative).
