Flashcards in Wills Deck (42)
What are lineal vs collateral heirs
Lineal descendants include children, grandchildren, etc. Collateral heirs (e.g., siblings) stem not from one another but from a common ancestor
What is a per stirpes distribution
Per stirpes distribution means that the descendants of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir. Florida follows a strict per stirpes rule, determining stirpital shares at the first generational level, whether or not there are any living takers at that level
The surviving spouse takes the entire intestate estate if: (one of what two scenarios occurs)
a. The decedent is also survived by descendants, all of whom are also descendants of the surviving spouse, and the spouse does not have any other descendants; or
b. The decedent leaves no surviving descendants
When is surviving spouse entitled to one-half of the intestate estate
If the decedent is survived by descendants and either the decedent or the surviving spouse has descendants who are not the descendants of the other
Note that in that case, the other half of the estate goes to the descendants of the decedent
What is the effect of divorce or legal separation on the right to inherit
The right of a spouse to inherit from the decedent is conditioned on the existence of the marital relationship at the time of death. Divorce severs this relationship; legal separation does not
The portion of the estate not going to a surviving spouse is distributed to other heirs based on five categories until takers are found; what are those five categories and what is the order
(i) Descendants, per stirpes;
(ii) Parents or the surviving parent;
(iii) Brothers and sisters and their descendants, per stirpes;
(iv) One-half to paternal grandparents and one-half to maternal grandparents and their descendants, per stirpes (Both halves to one side if no takers on the other side);
(v) Kindred of the last deceased spouse, as if she had survived the decedent and then died.
Failing all of the above, the estate escheats to the state
For purposes of intestate succession, how are adopted children treated in relation to their adopting parents and to their natural parents
Adopted children are treated the same as natural children of the adopting parents. There is no inheritance in either direction between adopted children and their natural parents, except where an adopting parent marries one of the natural parents or the child is adopted by a close relative. Any parent, natural or adoptive, is barred from inheriting from a child if that parent's parental rights were terminated.
For purposes of intestate succession, how are stepchildren and foster children treated
Generally, stepchildren and foster children have no inheritance rights unless adopted by the stepparent or foster parent. However, the doctrine of adoption by estoppel applies when legal custody of a child is gained under an (unfulfilled) agreement to adopt him
How are posthumous children treated for the purposes of intestate succession
In Florida, heirs conceived before the decedent's death but born thereafter inherit intestate property as if they had been born in the decedent's lifetime
How are nonmarital children treated for the purposes of intestate succession
Children born out of wedlock are heirs of the mother but not of the father, unless he marries the mother, is adjudicated the father before or after his death, or acknowledges paternity in writing
For half bloods-brothers and sisters who have only one common parent-how does inheritance by collateral kin work
Florida provides that half bloods take half as much as whole bloods, except where all collateral kin are half bloods
What is the only way to disinherit an heir
The only way to disinherit an heir is to otherwise dispose of the entire estate. Any undisposed property will pass via the intestacy statute regardless of the decedent's express wishes
What happens in the case of simultaneous death
Florida has adopted the Uniform Simultaneous Death Act, which provides that when disposition of property (by will, intestacy, joint tenancy, etc.) depends on the order of death and if the order cannot be established, the property of each decedent is disposed of as if he had survived the other. (In the case of a tenancy with right of survivorship, one-half of the property passes through to the estate of each.) The USDA applies unless there are specific contrary provisions in the will (or other instrument). Florida has not adopted the UPC and revised USDA rule that requires a person to survive a decedent by 120 hours in order to take property as an intestate heir, will or life insurance beneficiary, or surviving joint tenant.
What four things are needed for a beneficiary or heir to disclaim an interest
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
What happens to a persons interest in an estate when that person, as a beneficiary or heir, successfully disclaims their itnerest
It results in the interest passing as though the disclaimant died immediately before the interest was created
What are the requirements for one to qualify as a qualified disclaimer for federal gift tax purposes
the disclaimer must be made within nine months after the decedent's death or the beneficiary's 21st birthday.
Does a spendthrift provision or similar restriction damage the right of a beneficiary or heir to disclaim?
No--the right to disclaim will still exist
Is a disclaimer valid against creditors of the disclaimant, including federal tax liens?
While a disclaimer is valid as against creditors of the disclaimant because the disclaimant never owner the property, a disclaimer cannot be used to defeat a federal tax lien
In what five scenarios is a right to disclaim an interest barred?
(i) the beneficiary gives a written waiver of the right to disclaim;
(ii) the beneficiary accepts the property or any of its benefits;
(iii) the beneficiary voluntarily assigns, transfers, or encumbers the interest, or contracts to do so,
(iv) the property is sold pursuant to judicial process; or
(v) the beneficiary is insolvent
What happens in intestacy in the case of bigamy
Intentional bigamous conduct bars the bigamous spouse from inheriting the other's estate
What is the Slayer Statute
A person who wrongfully participates in the killing of another may not receive any benefits (by will, intestsacy, joint tenancy, etc.) as a result of the death. The property passes as if the killer had predeceased the victim. Joint tenancies and tenancies by the entirety are severed and treated as if they were tenancies in common; i.e., the killer neither forfeits his fractional interest in the property nor receives the victim's fractional interest. The evidentiary standard used in determining whether a person killed a victim is "greater weight of the evidence"; a conviction is not required
How do advancement of intestate shares work in FL
An advancement is a gift made to a next of kin with the intent that the gift be applied against any share the next of kin inherits from the donor's estate. 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. If found to be an advancement, the gift's value when given is added back into the estate for purposes of calculating shares, and then subtracted from the recipient's share.
What is the satisfaction of legacies
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 FL, 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
What constitutes a will, what is a codicil, and may a will be electronic?
A will is an instrument executed with certain formalities that is testamentary in character, revocable during the maker's lifetime, and operative at the testator's death. A codicil is a supplement to a will that modifies it. In FL, a will can be electronic.
Because a will is not operative until the testator's death, a beneficiary has a ____ (not a property interest) until that time
What is the rule of testamentary intent
The testator must have the present intent that the instrument operate as his will. Promises to make a will in the future and ineffective deeds are not given effect as wills. Parol evidence is admissible to show that an instrument was not meant to have any effect (e.g., that it was a sham will).
What is a conditional will
A conditional will is one that provides that it is to be operative only if a stated condition is satisfied, e.g., "if I do not return from this trip." Note that a court might interpret what appears to be a condition as merely expressing the motive for making the will, and might give the will effect even if the condition does not occur
What is the testamentary capacity required
The testator must be of sound mind and at least 18 years old or an emancipated minor at the time
What is the major formal requirement of a will
In Florida, a will must be signed at the end by the testator in the presence of two witnesses, who must sign in the testator's presence and in the presence of each other.