FL - Wills Flashcards Preview

Bar Exam - FL > FL - Wills > Flashcards

Flashcards in FL - Wills Deck (134)
Loading flashcards...
1

INTESTATE SUCCESSION

Definitions

Per Stirpes (Strict) "BY THE ROOTS"

Descendants take by representation the share that the deceased person would have taken had he survived to be an heir.

in FL, ALWAYS PER STIRPES

In FL, ALWAYS DETERMINED AT FIRST GENERATIONAL LEVEL, even if no living takers are at that level.


EXAMPLE 1

W (Dead)
S1(1/3) S2(1/3) D1(Dead)
GC1(1/9) GC2(1/9) GC3(1/9)

****Had daughter survived W, there would have been a per capita ("by the head) distribution, each child of W would take 1/3. Because the daughter predeceased W the 1/3 share that would have passed to her goes by representation to her 3 children, who take 1/9. ****


EXAMPLE 2

J (Bro-Dead)------D (Dead)-----H(Sis-Dead)-------W(Bro-Dead)
| | |
J1 J2 J3 J4 J5 H1 H2 H3 W1 W2
(J's Kids 1/15 Each) (H's Kids 1/9 each) ( W's Kids 1/6 each)

****JDHW are at same level, each received 1/3 of D's estate. ****

2

INTESTATE SUCCESSION

Intestate Share of Surviving Spouse

Surviving Descendants are ALL Descendants of Surviving Spouse --- ENTIRE ESTATE

If the decedent is survived by a spouse and descendants, all of whom are also descendants of the surviving spouse (children grandchildren of 1 marriage), and the surviving spouse has no other descendants, the survive spouse takes the ENTIRE INTESTATE ESTATE

3

INTESTATE SUCCESSION

Intestate Share of Surviving Spouse

NOT ALL Surviving Descendants are Descendants of Surviving Spouse --- ONE HALF

IF the decedent is survived by 1 or more children or more remote descendants who are not the descendants of the surviving spouse (children or grandchildren of prior marriage), the surviving spouse takes ONE HALF of the estate and the other one half passes to the descendants PER STIRPES.

EXAMPLE

------------ W (DEAD)---------------H
| |
A B C

W has a child (A) by her prior marriage, which ended in divorce. W Marries H and has 2 children, B and C. H does not adopt A. W dies intestate and is survived by H and 3 children. H takes 1/2 of estate, and the other 1/2 is divided between the 3 children.

4

INTESTATE SUCCESSION

Intestate Share of Surviving Spouse

Effect of Divorce or Legal Separation on Right to Inherit

The right of a spouse to inherit from the estate of the other spouse is conditioned on the existence of the marital relationship at the time of the decedent's death.

5

INTESTATE SUCCESSION

Intestate Share of Surviving Spouse

Effect of Divorce or Legal Separation on Right to Inherit

Divorce -- No Longer Surviving Spouse

If the parties are divorced before the decedent's death, the marriage relation is severed and the parties are treated as strangers for purposes of descent and distribution

6

INTESTATE SUCCESSION

Intestate Share of Surviving Spouse

Effect of Divorce or Legal Separation on Right to Inherit

Legal Separation -- Estranged Spouse and Inherit

A legal separation does NOT sever the marital relationship and is insufficient to deprive a spouse of the right to inherit, regardless of the length of the separation.

7

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

The portion of the estate that does not pass to the surviving spouse or the entire estate if the decedent left no surviving spouse, passes in the following manner

Portion Not Passing to Spouse Passes to Descendents

If No Descendants, to Parents of Surviving Parents

If no Descendeants or parents, to Brothers and Sisters and Their Descendants

If No descendants, to parents or descendants of parents

(i) to grandparents or surviving grandparent

(ii) if no grandparents, to descendants of grandparents, per stirpes

(iii) if no grandparents or their descendants on maternal side, to grandparents or descendants on patternal side (and Vice Versa)

If no grandparents or their descendants, to kindred of last deceased spouse

If none of the above, escheat to the state

8

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

Portion Not Passing to Spouse Passes to Descendents

The portion of the estate that does not pass to the surviving spouse passes to the decedents descendants. These descendants take PER STIRPES

9

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If No Descendants, to Parents or Surviving Parents

If the decedent was not survived by descendants, the entire estate passes to the decedent's mother and father in equal shares. If only 1 parent survived the decedent, that parent takes the entire estate.

10

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If no Descendeants or parents, to Brothers and Sisters and Their Descendants

If the decedent leaves no surviving descendants or parents, the estate goes to the decedent's brothers and sisters and their descendants, PER STIRPES.

11

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If No descendants, parents, or descendants of parents ----> then broken down as follows

If the decedent was not survived by descendants, parents, brothers or sisters or the descendants of brothers or sisters, the estate is divided into two shares. One share goes to the maternal kindred and the other share goes to the paternal kindred as follows:

12

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If No descendants, parents, or descendants of parents ----> then broken down as follows ::

(i) to grandparents or surviving grandparent

If, e.g., both maternal grandparents survive, the 1/2 share for maternal kin go to the two grandparents, 1/4 each. If however, only the maternal grandmother survives the decedent, she takes the entire 1/2 maternal share

13

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If No descendants, parents, or descendants of parents ----> then broken down as follows ::

(ii) if no grandparents, to descendants of grandparents, per stirpes

If both paternal grandparents predeceased the decedent, the 1/2 share for paternal kin goes to paternal uncles and aunts and the descendants of deceased uncles and aunts

14

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If No descendants, parents, or descendants of parents ----> then broken down as follows ::

(iii) if no grandparents or their descendants on maternal side, to grandparents or descendants on patternal side (and Vice Versa)

If there are no surviving paternal grandparents or descendants of paternal grandparents, the entire state (and not just 1/2) goes to the maternal grandparents and their descendants (and vice versa) in accordance with the above two paragraphs

15

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If no Grandparents or their descendants, to Kindred of Last Deceased Spouse

If the decedent was not survived by a spouse, descendants, parents or the descendants of parents, or grandparents or the descendants of grandparents, the decedent's estate goes to the kindred of the last deceased spouse (in accordance with the foregoing rules) as if the deceased spouse had survived the decedent, inherited the decedent's estate and then died intestate

16

INTESTATE SUCCESSION

Intestate Shares of Other Heirs

If none of the above, escheat to the state

If the decedent was not survived by grandparents or the descendants of grandparents, and if there are no living grandparents or descendants of grandparents of the last deceased spouse, the decedent's estate escheats to the state of FL

17

INTESTATE SUCCESSION

Special Cases

Adopted Children

As to Adopting Family -- Adopted Child Treated Same as Natural Child

Can inherit the same as normal child.

A child adopted after the execution of a will is a PRETERMITTED CHILD within the meaning of FL's Pretermitted Child Statute.

Similarly, an adopted child is conserved a descendant within the meaning of FL's anti lapse statute

18

INTESTATE SUCCESSION

Special Cases

Adopted Children

As to Natural Parents -- All Inheritence Rights Cut Off

EXCEPTION -- Death of A Natural Parent

Adoption of a child by the spouse of a natural parent who married the natural parent AFTER the death of the other natural parent has NO EFFECT on inheritance rights between the child and the family of the deceased natural parent.

Also, adoption of a child by a close relative has no effect on the relationship between the child and the families of the deceased natural parents

As natural father dies, and A's natural mother subsequently married S, who adopted A, A would continue to have inheritance rights through his deceased natural father (from his natural grandparents), notwithstanding his adoption by a new father.

19

INTESTATE SUCCESSION

Special Cases

NonMarital Children -- Child of Mother for Inheritance Purposes in ALL cases.

Inheritance Rights As to the Natural Father

DAD BY ESTOPPEL

A non marital child inherits from his father and the father's family ONLY IF:

(i) the NATURAL PARENTS PARTICIPATED IN A MARRIAGE CEREMONY before or after the child's birth, even if the attempted marriage is void;

(ii) paternity is established by an ADJUDICATION before or after the death of the father; or

(iii) the father ACKNOWLEDGES paternity in WRITING

Note: an action to establish paternity must be commenced within 4 years from the date the child reaches the age ft he majority. however, this limitation does NOT apply to paternity actions brought in probate to determine heirship .

20

INTESTATE SUCCESSION

Special Cases

Half Bloods

Halfbloods are brothers and sisters who have only one common parent

H -------- W --------------------H2
| |
A B C

21

INTESTATE SUCCESSION

Special Cases

Half Bloods

Half Bloods Take Half as Much as Whole BLoods

Where property passes to collateral kindred of the intestate, if some of the kindred are of the half blood of the intestate and others are of the whole blood, those of the half blood inherit only half as much as those of the whole blood. Thus, A would take 1/3 and B would take 2/3's of C's estate.

H (dead)------- W(dead) --------------------H2 (dead)
| |
A B C

If A Dies, B and C take 1/2 each. If all the collateral kin are of the half blood, they take whole parents.

22

INTESTATE SUCCESSION

Special Cases

Half Bloods

Half Bloods Take Half as Much as Whole BLoods

Distinction Applies Only to Inheritance by Collateral Kin

The half blood / whole blood distinction applies ONLY to inheritance by collateral kin. Suppose above, it was W who died intestate, survived by her daughter A (first marriage) and by her daughters B and C (second marriage). They would each take 1/3 from W's estate.

H(dead) -------- W(dead) ---------------H2 (dead)
| |
A B C

23

INTESTATE SUCCESSION

Disinheritance

A will provision that expressly disinherits an heir is INEFFECTIVE IF the testator dies partially intestate.

It will pass accordingly to intestate.

24

SUBSIDIARY PROBLEMS COMMON TO INTESTACY AND WILLS

UNiform Simultaneous Death Act -- Property Pass As Though Owner Survived and Beneficiary/heir Did not

USDA Applies UNLESS Instrument Provides Otherwise

No one is compelled to to have the statutes presumption apply to her estate

under the statute the presumption does not apply if "a contrary intention appears n the governing instrument"

25

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Evidence of Simulataneous Death

120 Hour Rule NOT ADOPTED IN FL

The USDA Applies ONLY IF there is NO SUFFICIENT EVIDENCE of survival

To Cover the above situation, the UPC and the revised version of the USDA provide a person must survive the decent by 120 hrs in order to take as will beneficiary, intestate heir, life insurance beneficiary, or surviving joint tent. HOWEVER, FL DID NOT ADOPT THE 120 HR RULE.

26

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Disclaimers

Procedure for Making a Disclaimer

Requirements for Validity

To be valid, a disclaimer must

(i) be in a WRITING IDENTIFIED AS A DISCLAIMER
(ii) DESCRIBE THE INTEREST OR POWER being disclaimed;
(iii) be SIGNED WITNESSED AND ACKNOWLEDGED; AND
(iv) be DELIVERED

27

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Disclaimers

Procedure for Making a Disclaimer

Requirements for Delivery

Delivery Method Dictated by Type of Interested Disclaimed

Intestate or Testamentary Gift -- > PR, if none, Clerk of Court

Testamentary Trust--> Trustee, if none, to PR, if none, to Clerk of Court

Inter Vivos Trust --> Trustee, if none, Clerk of Court, if before trust becomes irrevocable, to Grantor

Nonprobate Transfer (life insurance or IRA)--> Person Obligated to Distribute the Interest, if before irrevocable designation, person making the beneficiary designation

Surviving Joint Tenancy or Tenant by the Entirety --> person to whom disclaimed interest passes

28

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Disclaimers

When Right to Disclaim is Barred

Barred IF the beneficiary gives a WRITTEN WAIVER of the right to disclaim or if any of the following occur before the disclaimer becomes effective;

(i) the beneficiary ACCEPTS the property or any of its benefits

(ii) the beneficiary VOLUNTARILY ASSSIGNS, TRANSFERS or ENCUMBERS the interest or contracts to do so

(iii) the property is SOLD pursuant to judicial process; or

(iv) the *beneficiary* is INSOLVENT

29

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Wrongful Conduct of Heir or Beneficiary

Slayer Statute - Killer Forfeits All Rights in Victims Estate

A person who UNLAWFULLY and INTENTIONALLY kills or participates in procuring the death of the decedent is not entitled to any benefits under the decedent's will or under the probate code.

The estate passes as if the killer had predeceased the decedent.

However, the statute does not bar the killer's child from succeeding to property that otherwhise would have passed to the killer.

30

SUBSIDIARY PROBLEMS COMMENT TO INTESTACY AND WILLS

Wrongful Conduct of Heir or Beneficiary

Slayer Statute - Killer Forfeits All Rights in Victims Estate

Proof of Killing -- Evidentiary Standard

CONVICTION OF MURDER -- Conclusive Proof

A FINAL JUDGMENT of CONVICTION of murder in ANY degree is inclusive for purposes of the statute.