Distribution outside of will

Question 1

Define Heir at Law.

Answer 1

An heir at law is a person who is entitled to take the decedent’s property under the laws of intestate distribution. An heir at law is also called a beneficiary.

Question 2

Define Advancement.

Answer 2

An advancement is a transfer to a potential beneficiary that occurs before the intestate death of the decedent.

In Florida, 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.

In Florida, an advancement is not binding on a predeceased heir’s successors unless the writing or acknowledgement specifically provides otherwise.

Question 3

If a beneficiary received a cash advancement, the value of the advancement will be set at:

Answer 3

The sum received.

Question 4

If the beneficiary received an advancement in the form of property, the value of the advancement will be determined by:

Answer 4

The value of the property at the time the advancement was made, not at the time of the decedent’s death.

Question 5

Note how the Simultaneous Death Act operates.

Answer 5

Florida has adopted the Uniform Simultaneous Death Act (“USDA”). Under this act, if it is not possible to determine which of two persons died first, the property of each person will pass as if that person survived the other person.

The USDA applies unless there are specific contrary provisions in the will (or other instrument).

Question 6

Note whether Florida has adopted the 120-hour survival requirement.

Answer 6

Florida has not adopted the 120-hour survival requirement included in the revised Uniform Simultaneous Death Act and the Uniform Probate Code.

Question 7

Note the operation of the Slayer Statute.

Answer 7

A person who feloniously and intentionally kills another person or procures the death of another person forfeits all death-related benefits that the slayer would have derived from the decedent.

Question 8

Define the Uniform Disclaimer of Property Interests Act.

Answer 8

Florida has adopted the Uniform Disclaimer of Property Interests Act. Under that, an heir may disclaim an intestate share. If an heir properly disclaims an intestate share, the property will pass as if the heir had predeceased the decedent.

Question 9

To be valid, a disclaimer must:

Answer 9

1. Be in a writing identified as a disclaimer,
2. Describe the interest or power being disclaimed,
3. Be signed, witnessed, and acknowledges, and
4. Be delivered.

Disclaimers of real property must be recorded.

To be a qualified disclaimer for Fed Gift Tax, the disclaimer must be made within 9 months after the decedent’s death or the bene’s 21st birthday.

Question 10

If a person dies intestate in Florida, the person’s probate assets will be distributed under the provisions of:

Answer 10

Florida’s probate code.

Question 11

A person dies intestate if he:

Answer 11

• has not executed a will,
• has executed a will that is invalid in whole or in part, or
• has revoked a previous will without executing a new will.

Question 12

When is the right to disclaim barred?

Answer 12

In any of the following situations:

1. The bene gives a written waiver of the right to disclaim,
2. The bene accepts the property or any of its benefits,
3. The bene voluntarily assigns, transfers, or encumbers the interest, or contracts to do so,
4. The property is sold pursuant to judicial process, or
5. The bene is insolvent.

Question 13

Bigamy - wrongful conduct of heir or beneficiary

Answer 13

Intentional bigamous conduct bars the bigamous spouse from inheriting the other’s estate.

Question 14

Evidentiary standard for Slayer statute

Answer 14

The evidentiary standard used in determining whether a person killed a victim is “greater weight of the evidence”; a conviction is not required.

Question 15

If a beneficiary receives an advancement, how are the intestate shares calculated?

Answer 15

The gift’s value when given is added back into the estate and then subtracted from the recipient’s share. The heir does not need to return the amount of an advancement in excess of the value of her intestate share.

Question 16

Satisfaction of legacies

Answer 16

A testamentary gift may be satisfied in whole or in part by an inter vivos transfer from the testator to the beneficiary subsequent to the execution of the will, if the testator intends the transfer to have that effect.

In Florida, the doctrine does not apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction.

However, a writing is not required if the testator gives specifically described property to the beneficiary; in this case, there is both a satisfaction of the legacy and an ademption.