Florida Wills

Question 1

Definitions > Intestate v. Testate

Answer 1

Testate: Died with a valid will

Intestate: Died without a will or an invalid will

Question 2

Definitions >
1) Lineal Heirs (lineal ascendants + lineal descendants)
2) Collateral Heirs

Answer 2

Lineal Heirs: A person that stems from one another in a general line that includes the descendants.
Lineal ascendants: Father, mother, grandparents
Lineal descendants: Children, grandchildren, etc.

Collateral Heirs: Stem not from one another but from a common ancestor.
examples: siblings, cousins, aunts, uncles

Question 3

Per Stirpes Distribution

Answer 3

Florida is a strict per stirpes jurisdiction.

Stirpital shares are always determined at the first generational level, even if there are no living takers at that level. Each branch of the family will receive an equal share, even if the first person in the branch is deceased.
* Start with generation immediately following the deceased person and split estate equal – dead or alive.
* If descendant taker is dead, their stirpital share passes down to their descendants equally.

per stirpes – “by the roots” of the family tree

Question 4

Intestate Succession

Answer 4

Intestate means that the decedent did not have a will. However, intestate succession laws also apply to property that was not properly devised or not devised at all in a will.
Example:
* D owns a house and a boat.
* D’s will validly devises the house in his will but does not mention the boat
* The boat passes to D’s heirs by intestate succession.

Question 5

Intestate Succession > Spouse’s share (of the estate)

Whenever there is intestate succession, the first question should always be: What does the surviving spouse get?

Answer 5

Only two possible answers: ALL or HALF –(one big happy family concept)

The surviving spouse takes it ALL if:
* There are no descendants of the decedent, or
* There are descendants of the decedent, and those descendants are all descendants of the surviving spouse, and surviving spouse does not have any other descendants.

The surviving spouse takes HALF if:
* Decedent is survived by 1 or more descendants, any of which is not a descendant of the surviving spouse, or
* Decedent is survived by descendants, all of whom are also descendants of the surviving spouse, but the surviving spouse has other descendants that are not descendants of the decedent.

Question 6

Intestate Succession > Intestate Share of Other (Non-Spouse) Heirs

Answer 6

When the surviving spouse gets half or nothing, the portion of the estate that does not pass to the surviving spouse is distributed to the decedents heirs in the following order:

Descendants per stirpes

Parents - if no descendants, to the parents in equal shares. If only one surviving parent, then all to the one surviving parent

Siblings and their descendants - if no descendants or parents, then to siblings, per stirpes. (their descendants too)

Grandparents and their descendants - If no descendants, parents, siblings, or descendants of siblings, then estate is divided into two and passes to grandparents and their descendants.

Kindered of last deceased Spouse - If no grandparents or descendants of grandparents, then the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.

If none of the above, property escheats to the state

Remember that parents and collateral kin (brithers, sistersm aunts, uncles) never inherit in the intestate decedent is survived by children or more remote descendants (grandchildren, great grandchildren)

Question 7

Intestate Succession > Adopted Children

Answer 7

For purposes of intestate succession:
* adopted children are treated the same as natural born child of the adopting parents.
* They are entitled to inherit from the adopting parents just like a natural child.
* an adopted child cannot inherit from their natural parents. That relationship is cut off (severed) when the child is adopted

Question 8

Intestate Succession > Half-Bloods

Answer 8

Half-bloods are brothers and sisters who share only 1 parent in common
Rule: When intestate property descends to collateral heirs, like brothers and sisters, the collateral heirs that are half-bloods will take half as much as whole bloods.

[D]— A (whole) —B (whole) — C (half)

A: 2 parents in common w/ D
B: 2 parents in common w/ D
C: 1 parent in common w/ D
—————————————
5 total (denominator)

distribution:
A – 2/5
B – 2/5
C – 1/5

numerator is the number of parents in common

Question 9

Uniform Simultaneous Death Act

Answer 9

Rule: Property owner is deemed/presumed to have survived the beneficiary when there is insufficient evidence to establish that they died other than simultaneously
* The beneficiary is presumed to have died first.
* Applies in ALL contexts: via will, intestacy, joint tenancy with rights of survivorship, a life insurance contract, etc.

3 order-of-death possibilities:
a) Property owner died first;
* Beneficiary takes property.
* Does not matter how short the survival period. Need only a microsecond to avoid applying the USDA.

b) Beneficiary died first;
* Beneficiary does not take property.
* If decedent died intestate, the beneficiary’s descendants may take his place. If decedent died testate, the antilapse statute might apply.
* The anti-lapse statute provides that a gift to a predeceased beneficiary will not lapse but will instead go to the beneficiary’s surviving descendants per stirpes

c) Two died simultaneously.
* The beneficiary is presumed to have died first when there is insufficient evidence to establish that they died other than simultaneously.

FL Simultaneous death statute applies in 4 situations:

1) Applies whenever title to property, or its devolution, depends on the order of death.
* I.e. a testamentary devise.

2) If one person provides that 2 or more beneficiaries will take successive interests by survivorship. IF there is insufficient evidence that beneficiaries did not die simultaneously, the property is divided into equal parts based on the number of successive beneficiaries.
* Each part is distributed to the person that would take if the particular beneficiary had been the survivor.

3) Survivorship tenancies: JTWROS & tenancy by the entirety
* If deaths are treated as simultaneous, property is divided equally by the number of tenants and administered as such.
* Rule doesn’t apply to tenancies in common (b/c each tenant’s interest passed by will or intestacy).

4) Life or accident insurance policies.
* If deaths are deemed to be simultaneous, insured is treated as surviving the beneficiary.

Joint tenancy with right of survivorship between A, B, C.
* If simultaneous death between A and B – C takes all.
* If all die simultaneously, each person’s beneficiaries takes that persons share.

Question 10

Slayer Statute

Answer 10

A person that unlawfully and intentionally kills or participates in procuring the death of a decedent is not entitled to any benefits under the decedents will or the probate code.
* The estate passes as though the killer had predeceased the decedent.
* You don’t need a murder conviction. A conviction for murder is conclusive proof, but without it, you just need to prove by the greater weight of the evidence.
* Self-Defense killing is not unlawful.

However, lineal descendants of the killer are not prohibited from taking under the statue.

Question 11

Disclaimer of Interests

Answer 11

A disclaimer is when a beneficiary of a decedent’s property does not wish to receive the property. This is usually done for tax purposes.

Rule: A disclaimer must be in writing.

Rule: No Florida time limit for disclaimer
* but right to disclaim can be waived by accepting or using property

Rule: 9 month time limit to disclaim for FEDERAL gift tax purposes
* within nine months of the decedents death.

Question 12

Advancement of Share

Answer 12

An advancement is a gift made to a next of kin with the intent that the gift is an advance of property to be received from the decedents estate.
* An inheritance given EARLY (early distribution of what you would get as inheritance from your parents). NOT A GIFT!

Rule: 2 methods for establishing a transfer is an advancement:
* 1) Decedent delivered a writing stating that the transfer is an early inheritance or to be charged against heir’s inheritance, or

• 2) The heir may acknowledge in writing that he received his early inheritance.

Rule: the advancement is valued as of the date of the gift

Problem: Father has a son and a daughter. Father has 200k. Father gives 20k to daughter as an advancement. The father dies the next day. There is now 180k in the estate.
* Normally, if the father dies intestate, we would distribute half and half to each child. So each child would receive 90k.
* However, with advancement we proceed as follows. The 20k that was lent to the daughter gets put in a hotchpot (on paper, we don’t actually ask her the money back), and the estate is back to having $200,000. Therefore, each child should get $100,000.
* And because Daughter already received 20k, we reduce it from the 100k that she was supposed to receive and she gets 80k and her brother receives 100k.
* Don’t forget that the father has to give: (1) A writing saying this is an advancement or (2) daughter can acknowledge in writing as to the advancement.

Question 13

Wills

Answer 13

A will is a legal instrument that is:
* Executed with certain formalities
* Testamentary in nature
* Revocable during the lifetime of the maker
* Operative only upon the testators death

Question 14

Wills > Codicil

Answer 14

A codicil is a supplement/amendment to a will.

A codicil has the same formalities as required by a will
* treated just like a will

Question 15

Wills > Intent

Answer 15

In order for a will to be valid, the testator must have intended the instrument to be his or her will.
* This is usually shown on the face of the will itself, ex: “I, John doe, do hereby declare this instrument to be my last Will.” This is, however, a rebuttable presumption of intent. (ex: coercion)

Question 16

Wills > Testamentary Capacity

Answer 16

Rule: Testator must be at least 18 years of age or an emancipated minor at the time of the will is created.

Rule: Testator must be of sound mind at the time of making the will:
* must understand the nature and extent of their property
* must understand the persons who are the natural objects of their bounty (who would get property without will)
* must understand the nature of the disposition – a general understanding of the practical effects of the will

Question 17

Wills > Formal Requirements for Wills

Answer 17

There are 6 requirements for the formal execution of a will:

1) Testators signature: the will must be signed by the testator or by another person at the testator’s direction and in the testator’s presence.
* Any mark that is affixed by the testator, with the intent that the mark operate as the testator signature, satisfies the signature requirement

2) Signature at the end (temporally): it doesn’t matter where the testator signs so long as the testator signed at the end of the preparation of the will. Think temporally.
* End of the will has been stated to be the logical end – after the dispositive provisions and administrative provisions of the will.

3) Earlier Signatures: If testator or proxy signed earlier, Testator must acknowledge that they signed the Will earlier to the two witnesses when they sign.

4) Two witnesses: there must be at least two witnesses
* Rule: an interested witness is still a valid witness
* No minimum age requirement. Must have the ability to comprehend the nature of the act of the testator (16 may be okay. 5 may not)

5) the witnesses must sign in the testators presence
* Presence is determined by whether the person was in such close proximity to the other that he or she could have seen the signing had he looked

6) the witnesses must sign in the presence of each other
* Presence is determined by whether the person was in such close proximity to the other that he or she could have seen the signing had he looked

Witnesses will need to testify about the execution of the will in order to prove the will. This problem can be avoided by a self-proof affidavit.

Question 18

Wills > Self-Proof Affadavits

Answer 18

Witnesses will need to testify in court about the execution of the will in order to prove the will. This problem can be avoided by a self-proof affidavit.

A self proof affidavit permits the will to be self proving and thus will not require the testimony of the witnesses in court.

Rule: In order to self prove the will, the testator and the witnesses must sign the will and then sign a sworn affidavit before a notary public reciting that the testator declared this to be their will and that the signature formalities were followed

The signature on the affidavit can count as the required signatures on the will

Question 19

Wills > Holographic & Oral Wills

Answer 19

A holographic will is a will that is written and signed by the testator, but not signed by any witnesses.
* Holographic wills are not permitted in Florida as they do not contain the requisite number of witness signatures.

Oral wills are not permitted in Florida. Wills must be in writing.

Question 20

Wills > Wills executed by non-Florida residents

Answer 20

Wills executed by non Florida residents are valid in Florida so long as they were valid in the state where the testator was a resident.

Question 21

Wills > Revocation of Wills

Answer 21

In order to revoke a will, a testator must have testamentary capacity
* (is of sound mind, appreciate the nature of the act, ETC.)

Three general ways to revoke a will:
* revocation by operation of law —(partial + full)
* revocation by subsequent written instrument —(partial + full)
* revocation by physical act —(only full)

1) Revocation by OPERATION OF LAW: This occurs in cases of marriage, divorce, or birth/adoption of children.
* Marriage following Execution of Will—Pretermitted Spouse Takes Intestate Share. *
* Divorce/Annulment—Revokes All Provisions in Favor of Former Spouse Regardless if marriage was before or after execution, the spouse is treated as having predeceased the testator.
* A Child born or Adopted After the Execution of the Will—Pretermitted Child Takes Intestate Share. General abatement rules apply. Thus, will is revoked to the extent necessary to make up childs share. *

2) Revocation by SUBSEQUENT WRITTEN INSTRUMENT: A will or any part thereof may be revoked by subsequent written instrument (will, codicil, other) executed with the same formalities as are required for the execution of a will.
* Implicit Revocation by Inconsistent Provisions. A subsequent will that does not explicitly revoke an earlier will may implicitly revoke the earlier will, or part of the earlier will only to the extent of inconsistent provisions. *

3) Revocation by PHYSICAL ACT: A will or codicil can be revoked by burning, tearing, counseling, defacing, obliterating, or destroying it with the intent, and for the purpose, of revocation. (FULL revocation ONLY)
* No partial revocation by physical act in Florida. You either revoke the entire will or no part of it.
* If attempting to deface by writing something like “void”, it should not be done in a blank space but rather should be across the face of each page and touching the text.

1. unless intestate share is waived in a valid pre or postnuptial agmnt, the will includes a gift to the spouse in contemplation/consideration of marriage, or the will discloses an intention not to make a provision for the spouse.
2. Pretermitted (spouse + child) shares are paid first (through abatement of devices) and then the balance of the estate is distributed according to the will (will is revoked to the extent necessary to make up the share)
3. Example: first will leaves the Ford Mustang to John. A second will is executed and says nothing about revocation, but leaves the Ford Mustang to Bob. The Ford Mustang provision in the first will is implicitly revoked and the car will go to Bob.

Question 22

Wills > Residual Estate

Answer 22

Residual Estate: the residual estate consists of all property that was not devised by the will. The residual estate can be devised. If not devised, it passes through the intestacy rules
* Example: T has a Car and a Plane. T’s will devises the Car to J. The plane is part of the residual estate.

Question 23

Lapse and Anti-Lapse Statute

Changes in Beneficiaries and Property After Will’s Execution

Answer 23

Lapse: A gift to a beneficiary lapses when the beneficiary predeceases the testator. You cannot gift to a dead person.
* Example: T devises his car to Fred. Fred dies, then T dies. The gift of the car to Fred’s lapses. His heirs cannot take the car.

Anti-Lapse: Florida has an anti-lapse statute that provides that a gift to a predeceased beneficiary will not lapse but will instead go to the beneficiary’s surviving descendants per stirpes if:
* the beneficiary is a grandparent or a descendant of a grandparent of the testator; AND
* the beneficiary is dead when the will is executed, fails to survive the testator, or is required to be treated as predeceased by operation of law.

Statute always applies unless the testator opts out of the anti-lapse statute by a clear intention in the will.

Question 24

Ademption (+ 3 types of devises in a Will)

Changes in Beneficiaries and Property After Will’s Execution

Answer 24

Ademption refers to failure of a gift because it is no longer in the testators estate at the time of death.

Ademption only applies to specific devices.
* If the property specified by the specific devise is not in the estate at the time of the decedent’s death, the gift adeems and nothing goes to the beneficiary as part of that devise.

Ademption does not apply to general or demonstrative devises.
* This means that the beneficiary must get the sum of money specified (assuming there are monies to pay, of course)

3 types of Devises in a Will:

1) Specific Devise: A devise that is to be satisfied only by receipt of the specific/particular property described.
* T devises the car to J

2) General Devise: A devise of a specific dollar amount *
* T devises $5000 to J

3) Demonstrative Devise: A devise of a specific dollar amount that is payable from a particular asset as the source of payment.
* T devises $5000 to J to be paid from his Microsoft stock *

1. payable out of the general assets of the estate
2. Courts will typically construe a gift of securities as a general legacy “200 shares of Microsoft stock”, unless the testator specifically stated, e.g., “MY 200 shares of Microsoft stock”

Question 25

Wills > Family Allowance

Answer 25

The purpose of the family allowance is to provide support during probate administration.

Florida authorizes a payment to a spouse or minor children in order to support the spouse or minor children during the period in which assets are tied up in the probate administration procedure.
* It is in addition to the amount passing by will, intestacy, elective share, or homestead.

The maximum family allowance in Florida is $18,000
* The judge can set aside $18,000 worth of probate estate and that is free of all creditor claims.

The family allowance must be petitioned for; It is not automatic. The spouse does not have to show need.

Question 26

Wills > Exempt Personal Property Set Aside

Answer 26

in addition to amounts otherwise passing to them—(homestead and family allowance rights):

A surviving spouse (or if none, the decedents children) is entitled to:
1) Up to $20,000 worth of household furnishings,
2) Two of the decedents personal motor vehicles * , and
3) Prepaid college tuition programs
* Protections: These items are exempt from all claims against the estate except perfected security interests on the property. (liens, mortgages, etc.)
* If the exempt property is devised in the will, It is not subject to these protections

Exempt property is excluded from the value of the decedents estate before residuary, intestate, pretermitted, or elective shares are determined.

1. Two of the decedents personal motor vehicles: must be less than 15,000 pounds, titled in the name of the decedent and regularly used by the decedent or members of the immediate family as personal vehicles
2. The exempt personal property set aside must be petitioned for.

Question 27

Wills > Spousal Elective Share

Answer 27

Spousal elective share protects surviving spouses from disinheritance. The Elective Share:
* Permits the spouse to take 30% of the decedent’s elective estate in lieu of his or her share under a will.
* Is in addition to the spouse’s right to homestead property, exempt property, and a family allowance.

Property Subject to the Elective Estate includes, but is not limited to:
* the decedent’s probate estate (but not homestead),
* payable on death accounts,
* decedents fractional interest in property held as JTROS or TBE,
* revocable trusts,
* net cash surrender value of the decedent’s life insurance policy, and
* property transferred during the one year period preceding the decedent’s death.

there are others, but these are the common ones

Question 28

Homestead Property

Answer 28

Homestead consists of
* 1/2 acre inside a municipality or
* 160 acres outside of municipality.

If held in a TBE or JTWROS, it passes by survivorship, but
Rule: If held in some other form, it is not subject to devise (by will) if the owner is survived by a spouse or minor child, but it may be devised to the spouse in fee simple absolute if there is no minor child.

If improperly devised, it descends as intestate property, except that if the decedent is survived by a spouse and one or more descendants, the spouse takes a life estate, with a vested remainder to descendants surviving the decedent’s death, per stirpes.
* In lieu of a life estate, within six months of the decedent’s death the spouse may elect to take an undivided one-half interest in the homestead as a tenant in common with descendants surviving the decedent’s death, per stirpes.

The homestead exemption from forced sale by creditors inures to the surviving spouse or heirs of the owner. Homestead property not specifically devised generally passes to the residuary as undisposed-of property.

Question 29

Probate > Jurisdiction

Answer 29

In Florida, circuit courts have exclusive jurisdiction over the settlement of a decedent’s estate

Question 30

Probate > Admitting Will to Probate

Answer 30

If a will is not self-proved by way of affidavit, it must be proven before it can be admitted to probate.
* This is done by way of the witnesses providing a sworn oath that this was the the will of the decedent

Question 31

Probate > Who is Entitled to Serve as Personal Representative?

Answer 31

In a testate estate, in the following order:
* 1) the person nominated in the will
* 2) the person selected by a majority in interest of persons entitled to the estate (the person selected by a majority of the heirs)
* 3) A devisee under the will

In an intestate estate, in the following order:
* 1) the surviving spouse
* 2) the person selected by a majority of the heirs
* 3) the heir nearest in degree of kinship to the decedent

Question 32

Probate > Qualifications of the Personal Representative

Answer 32

Qualifications of the Personal Representative must:
* be a resident of the state of Florida
* be 18 years of age or older
* have mental capacity
* never have been convicted of a felony

a Florida or Federal Bank, savings and loan, or other Trust Company authorized to exercise fiduciary powers may also serve as a personal representative.

Question 33

Probate > Personal Representative Responsibilities

Answer 33

The personal representative of the probate estate is responsible for the overall administration of the estate
* gather the decedents assets,
* giving notice to creditors,
* paying valid claims,
* filing the decedents final income tax and estate tax return (if required),
* wind up the decedent’s affairs, and
* distribute the remaining assets according to the decedents will or the intestacy statutes.

Question 34

Probate > Personal Representative Compensation

Answer 34

A personal representative is entitled to reasonable compensation for his/her services payable from estate assets.

Limiting compensation via will provision:
* A provision in the will limiting the amount of compensation to the personal representative is not binding UNLESS it was made pursuant to a contract between the decedent and the personal representative

Question 35

Probate > Notice to Creditors and Creditors’ Claims

Answer 35

The personal representative must promptly file a notice to creditors once a week for two consecutive weeks in a newspaper published in the county of administration.

However, personal service of the notice of administration is required to known and reasonably ascertainable creditors.

Creditors must file claims in order to be paid from the estate.
* Creditors must file their claims no later than 3 months after publication of the notice to creditors or
* 30 days after personal service of the notice of administration.

Creditors are paid in the following ORDER from the assets of the estate (memorize 1, 2, 4, 5, 7, 8)

1. Costs, expenses of administration *
* compensation of personal representatives and their attorneys, and attorneys fees awarded from the estate

2. Funeral expenses up to $6k
* Reasonable funeral, Interment, and grave marker expenses

3. Debts and taxes with preference under federal law
* Medicaid or other government assistance programs
* claims in favor of the state for unpaid court costs, fees, or fines.
* outstanding federal income tax payments, estate taxes

4. Expenses of last illness (60 days)
* Reasonable and necessary medical and hospital expenses of the last 60 days of the last illness of the decedent

5. Family Allowance

6. Arrearage from court ordered child support

7. Decedent’s business debts acquired after his death by the continuation of the business.

8. All other claims

Question 36

Abatement

Answer 36

Background: Remeber, only after all creditor claims have been paid can the estate be distributed to the heirs

Rule:
Creditors get paid FIRST from the INTESTATE property of the estate.

However, if there is not enough in the intestate estate, and creditors are still owed then creditors are paid from (in this order):
* the residuary,
* then general devises,
* then specific and demonstrative devises.