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Wills > Wills > Flashcards

Wills Flashcards

1
Q

Define a will

A

Legal doc used to dispose the decedents property

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2
Q

What is a codicil

A

A supplement to a will that either amends or revokes it in whole or in part. May even validate a prior invalid will or revive a former will if it refers to it with certainty.

Same requirements of a will apply

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3
Q

What is probate

A

Judicial process for administering and settling decedents estate.

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4
Q

What is an heir

A

Individual entitled to receive property by intestate succession (default estate plan).
You cant have heirs until you die.

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5
Q

What is issue

A

Decedents lineal line

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6
Q

What is FLORIDA’S Uniform Simultaneous Death Act (USDA)

A

When a decedent and an heir die at the same time (like an accident) an heir must be proven by a preponderance of the evidence to have survived the decedent by even a moment.

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7
Q

If the decedent is survived by only a spouse and no descendants, who takes by intestate succession?

A

Spouse takes entire estate

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8
Q

If the decedent is survived by spouse and their shared kids.. and spouse has no other kids, who takes by intestate succession

A

Spouse takes entire estate

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9
Q

If the decedent is survived by spouse plus other descendants (a kid from an earlier relationship), who takes by intestate succession

A

The spouse takes half, and the decedents kids take the other half per stirpes.

*if there are kids that are the spouses but are NOT related the decedents, that kid doesn’t get anything

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10
Q

What are ancestors

A

Decedent’s parental line (siblings, cousins, aunts, uncles)

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11
Q

Who are considered collateral?

A

Decedent’s relatives through an ancestor (siblings, cousins, aunts, uncles)

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12
Q

What is virtual adoption and how does it effect intestacy

A

It’s where a child was going to be adopted but was not legally adopted.
Child shares in the estate of the person who was going to adopt him.

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13
Q

What is the effect of step parent adoption for intestacy purposes

A

It creates ANOTHER parent/child relationship between the child and the stepparent for purposes of inheritance.

The child can still inherit from the other genetic parent.

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14
Q

FLORIDA has per stirpes for intestacy division. How does that work

A

It divides the shares equally according to a decedents lineal line. If a child of the decedent predeceased the decedent but has issue, the issue will stand in the shoes of the parent.

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15
Q

What are the formal execution requirements

A
  1. Signed writing (oral/nuncupative will is invalid in FL)
  2. Witnessed
  3. Testamentary Intent
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16
Q

In FLORIDA where must the testator sign the will

A

At the end, meaning below the portion of the will that makes the dispositions.

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17
Q

A will must be signed by 2 witnesses while in the presence of the testator. What are the kinds of ways you can show presence?

A
  1. Scope of vision- T must be able to actually see the witnesses sign
  2. Conscious Presence- Wit or T must be aware the act of signing is being performed, even if they cant see it

In FLORIDA be ready to discuss both because FL hasn’t settled on a rule on that yet.

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18
Q

What are the FLORIDA requirements for a person to witness a will

A

No minimum age. Just competency and sufficient ability to observe the signature and understand the act

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19
Q

In FLORIDA does an interested witness affect the validity of a will

A

Nope

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20
Q

What are the 2 requirements for a person to make a will

A

18 years old and of sound mind at time of signing.

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21
Q

Does Florida require strict compliance with all will formalities or only substantial compliance?

A

STRICT COMPLIANCE

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22
Q

What is a holography will and is it valid in FL

A

An informal, handwritten will that is not witnesses. Not valid in FL.

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23
Q

What are the will substitutes that will avoid probate

A

Joint Tenancy- because of the right of survivorship
Revocable Trust- because its an intervivos transfer
Pour-over will- Distributes prop under a trust
Pay on death contract- (ex: a beneficiary on life ins)
Deed: avoid probate bcuz intervivos transfer

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24
Q

How can you revoke a will

A

May revoke in full or in part.

  1. Subsequent instrument - expressly revoke prior will
    (a. ) A later inconsistent writing with a prior will if validly executed will control
  2. Physical act- tearing, burning, defacing, canceling stuff out. Cant be by accident.
    (a) In FLORIDA you cannot partially revoke by a physical act. You cant cross out a single devise.
  3. Operation of law- Divorce
    (a. ) (In FLORIDA, it revokes provisions in favor of former spouse, but a subsequent marriage wont revoke the will.
  4. Lost Will- Rebuttable presumption that T revoked will by physical act.
    (a) Proponent must show will existence by competent and substantial evidence.
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25
Q

What does a pretermitted child get in a will

A

What he would have gotten if the T died intestate UNLESS

  1. leaving the child out was intentional
  2. Gave substantially all the estate to the child’s parent
  3. Child got what would have been equal to his intestate share in advance.
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26
Q

A third party CAN revoke on behalf of a T if:

A

At T’s direction, and in T’s presence.

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27
Q

If a T revokes a codicil to a will, what happens to the underlying will?

A

It is revived in its original form

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28
Q

What is Dependent Relative Revocation

A

Safety valve for T’s who revoke their wills by mistake. of law or fact. Goal is to avoid intestate succession

Example: Will 1 left everything to Dorothy You heard a rumor that she died. You do will 2 expressly revoking will 1 and leave everything to a charity. Later you find out Dorothy is alive. DRR can be applied to undo the revocation of the first will.

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29
Q

A man does a will and later gets married. The will makes no mention of the new wife (pretermitted spouse). Does the spouse get anything when the man dies?

A

Yes, her intestate share to account for not being on the will UNLESS:

  1. Waiver by writing with 2 witnesses
  2. Prenup addresses the situation
  3. The T’s will expressly states the intent not to include a subsequent wife.
30
Q

A will may incorporate an extrinsic document that is not testamentary in nature if….

A
  1. It existed at the time of the execution
  2. T intends doc incorporation, and
  3. The doc is described w/ sufficient certainty to permit I.D.
31
Q

What is the C.L rule for lapsed gifts

A

A testamentary gift would lapse (fail) if the intended beneficiary did not survive the testator. It would go into the residuary of the will.

32
Q

FLORIDA’s anti-lapse statute

A

Gift wont lapse and will do to B’s issue if:
1. Relative of T (grandparent;descendant of grandparent)
and
2. Survived by issue
UNLESS WILL STATES OTHERWISE OR GIVES CONDITION

  • If above not met, C.L. applies and the gift goes to the residuary unless will provides for alternative for lapse
  • If residuary is given to 2+ Bs, and one of them die, the rest B’s take the dead B share unless anti lapse applies.
  • FL Class gifts- If the member of the class is covered by the anti-lapse statute, that rule controls. If member is not covered by the anti lapse statute, the rest of the members share the dead B’s portion
33
Q

What is abatement

A

When the state does not have sufficient funds to pay debts or make gifts, the gifts will be abated (gotten rid of) in a specific order.

34
Q

Abatement hierarchy

A
  1. Intestate
  2. Residuary
  3. General gifts
  4. Specific and demonstrative gifts
35
Q

Ademption

A

When a will makes a specific devise but the property is not longer in the estate at the T’s death.

<> Traditional rule: Devisee takes nothing

<> Florida allows the intended recipient to take the balance on the purchase price or proceeds of the sale, if traceable. Court considers T’s intent.

36
Q

Ademption by satisfaction

A

When a T satisfies a gift inter vivos (T was going to give something to B in his will, but T gave it to him while he was alive)

In FLORIDA the you neither ONE of the following:

  1. Will provides for deduction of property;
  2. T declares in contemporaneous writing that gift should be deducted
  3. Recipient acknowledges in writing that the gift satisfies the devise
37
Q

A surviving spouse is entitled which what kind of means of support?

A
  1. Social security
  2. Homestead exemption
  3. Personal property set asides
  4. Family allowance during probate proceedings
  5. Elective share
38
Q

What is an elective share

A

Prevents the surviving spouse from being cut out of a decedent’s will by allowing the spouse to elective to take a percentage of the estate.

30% of the “Elective Estate” which includes:

  1. Probate estate;
  2. Homestead
  3. Pay on death accounts
  4. Concurrent interests;
  5. Prop subject to revocable and irrevocable transfers
  6. Life Insurance
  7. Survivors pensions
  8. Property transfers within 1 year and
  9. Transfers in satisfaction of elective share

***If the share is still not satisfied, the court will take the rest from the estate to satisfy the elective share.

Once taken, the spouse disclaims any other interests from the estate.

39
Q

In FLORIDA the family allowance may not exceed ________________ in a lump sun or installments

A

$18,000

40
Q

What must a spouse do to waive their elective share?

Important

A

Signed doc, 2 witnesses.

If waiver is AFTER marriage, each spouse must make a discloser to the other about that spouses estate.

41
Q

What are the requirements for homestead property

A
  1. Real property (not personal)
  2. Decedent was FL resident
  3. The prop was the Decedents or his family’s residence
42
Q

When CANT the decedent devise his homestead property

A

When he was survived by a spouse or minor children.

43
Q

If decedents is survived by spouse and kids or just spouse, who gets the homestead property?

A
  1. If spouse + kid(s): Spouse= L.E./Kids=vested remainder in the kids that were alive at decedent’s death.
    *Spouse can choose undivided TIC instead of L.E. with remaining undivided 1/2 going to kids.
    +Decision is irrevocable.
    +Has 6 months after decedents death to decide
  2. If only survived by spouse then the spouse takes FSA
    * Waiving the homestead protection requires a signed doc with 2 witnesses.
44
Q

What is a property set-aside

A

A right to exempt personal property if the decedent was domiciled in FL at death.
<> Goes first to the spouse, then descendants
<> Includes:
(a) Contents of the home up to $20,000
(b) 2 vehicles in decedent’s name and use by family as personal vehicles
(c) College accounts/ tuition plans/benefits to teachers

45
Q

Who can take a family allowance?

A

Spouse or lineal heirs (not just descendants) as long as they were dependent on the decedent’s for support.

46
Q

Slayer Rule

A

A person who intentionally kills a person is prohibited from taking as a beneficiary from victims estate (doesn’t apply to killers kids)

<> FL Standard of proof: A final conviction of murder (not manslaughter) in any degree is conclusive proof
<> If no final conviction, court can determine by a preponderance of the evidence (greater weight)

47
Q

How do you disclaim an interest from an estate

A
  1. Writing identified as a disclaimer
  2. Describe the interest or power being disclaimed.
  3. Signed, Witnesses, acknowledged
  4. Delivered to person with legal title to property
  5. Keep receipt of delivery
  6. File it with clerk of court in county where venue is OK

FLORIDA accepts a disclaimer at any time. No time limit.

48
Q

Who has standing to challenge a will?

A

An interested party, meaning:

  1. Person who may reasonably be affected by the outcome of the proceeding
  2. Someone who will benefit under the will
  3. Someone who will take under intestate succession but is not in the will.
49
Q

What is required to have the requisite mental capacity at the time of the execution of the will?

A
  1. Know the nature of the act (“why”)
  2. The extent of your property (“what”)
  3. Natural objects of your bounty (“who”)
  4. Effect of the disposition you are making (“how”)

*The issue is not whether the T actually knew these things, but whether the T had the ability to know them.

50
Q

What proof is needed to show undue influence

A
  1. Coercive relationship
  2. 3P controlled the T’s decision making process
  3. Substantially benefitted under the will
  4. Confidential relationship with the T, and
  5. T had a weakened intellect at the time of execution.
51
Q

What must be shown for Fraud/unlawful misrepresentation at the time of the will

A
  1. Intent to deceive the testator; and

2. The purpose of influencing the testamentary disposition.

52
Q

Fraud in inducement

A

T is induced to make a different will than he would have otherwise made

53
Q

Fraud in the execution

A

A misrepresentation as to the character or contents of the will.

54
Q

What is a forfeiture clause

A

A clause designed to dissuade a beneficiary from suing about his share. UNENFORCEABLE IN FLORIDA

55
Q

What does FLORIDA do about latent (not obvious) and patent (obvious) ambiguities?

A

Extrinsic evidence is admissible to resolve both.

56
Q

Non-probate property transfers by an instrument other than a will, such as__________________

A
  1. Deed
  2. Trust
  3. JTROS
    4, POD contract
57
Q

Probate proceedings must be brought within ____ years of death. If not, what happens?

A

3 years. After that there is a presumption of intestacy

58
Q

What is required in order to be a personal representatives

A
  1. 18 or older
  2. Florida resident
  3. Mental capacity
  4. Never committed a felony
59
Q

What are the personal representatives’ duties

A
  1. Notify the family, beneficiaries, creditors, re: D’s death
  2. Inventory and preservation of the estate
  3. Fiduciary duties (loyalty and care)
60
Q

What is the order that the PR must pay expenses of the estate

A
  1. Expenses of administration, PR comp. atty fees.
  2. Funeral
  3. Debts and taxes. Feds first
  4. Med bills from last 60 days of D’s last illness
  5. Family allowance if any
  6. Court ordered child support
  7. Debts from after D’s death RE: continuing her biz
  8. Everything else.
61
Q

Time limit for creditor to file a claim against the estate

A

If PR put proper notice of D’s death in the newspaper
and
Creditor was served with copy of notice. creditor MUST file the LATER of:
<> 3 months after 1st publication of notice OR
<> 30 days after being served of the notice
*If not, creditor it barred.

PR didn’t put proper notice in newspaper? = 2 yrs

62
Q

What must a child prove to show there was a virtual adoption

A
  1. Agreement to adopt existed
  2. Performance by adoptive parents and kid
  3. Part performance by adoptive parents
  4. Alleged adoptive parent died intestate
63
Q

How long does a surviving spouse have to petition to receive an elective share?

A

May be filed within 6 months after the surviving spouse received notice of the administration of the decedent’s estate.

64
Q

What happens when a beneficiary of a devise in a will dies BEFORE the testator?

A

It “lapses” so the gift fails and becomes part of the testator’s RESIDUARY unless the will provides for an alternative disposition.
*Remember, while FL does have an anti-lapse statute, it only protects a beneficiary who is a grandparent or a descendant of a grandparent of the testator.

65
Q

If the decedent had no surviving descendants, parents, or siblings or their descendants, then how does the estate pass?

A

Half to the decedent’s paternal kindred and the other half to the decedent’s maternal kindred in the following order:

  1. to the decedent’s grandfather and grandmother equally, or to the survivor of them, and
  2. if neither grandparent survives, then to the grandparents’ descendants (e.g., decedent’s aunts, uncles, cousins), per stirpes.
66
Q

Under the Florida Uniform Simultaneous Death Statute, what standard of proof of evidence must the P show that someone survived the other decedent

A

Preponderance of the evidence.

67
Q

What is a General Devise?

A

Gift of personal property that the testator intends to be satisfied from the general assets of the estate.
(“A laptop to bob” or $100k to my doctor)

68
Q

What is a demonstrative devise?

A

Monetary gift that identifies a particular fund or asset as the source of payment.
($20,000 out of my Wells Fargo Savings)
**However, a demonstrative devise is classified as general devises for abatement purposes if the fund or asset from which the gift is to be taken is insufficient.

69
Q

If the estate does not have sufficient funds, in what order does it abate the gifts?

A

“I’m a Really Gangsta Salsa Dancer”

  1. ) Intestate
  2. ) Residuary
  3. ) General
  4. ) Special and Demonstrative
70
Q

What is a Special Devise?

A

Gift of property that can be distinguished with reasonable accuracy from other property that is part of the testator’s estate.

71
Q

Define residuary estate

A

Remainder of the estate after all claims against the estate and all specific, general, and demonstrative devises have been satisfied.

72
Q

What is Florida’s Anti-Ademption Statute?

A

If a Testator gives a specific devise, but that specific devise does not exist or is not only part of the Testator’s estate at the time of the Testators’s death, then the devisee gets proceeds from the specific devise, if traceable. (Hypo: T devises promissory note to D in her will. Before T dies, T takes the property subject to the note back in lieu of foreclosure. At T’s death, D gets that property that was subject to the note even if there is another devisee in the will entitled to T’s property)

Wills (1 decks)

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