Wills and Estates Flashcards
(117 cards)
1
Q
Decedent
A
Dead person
2
Q
Descendant
A
children, grandchildren, etc.
3
Q
Ascendant/ancestor
A
parents, grandparents, etc.
4
Q
Collateral heir/kin
A
relatives who stem from a common ancestor, like siblings or cousins.
5
Q
Testator/Testatrix
A
the person whose assets are being disposed of by will
6
Q
Probate
A
the legal process by which a person’s assets and legal obligations are resolved, after death.
7
Q
Testamentary gift or devise
A
Assets disposed of by will.
8
Q
Devisee or beneficiary
A
one who inherits assets from an estate
9
Q
Specific gift
A
A specific devise of money or property to a particular individual
10
Q
Residual estate
A
All property in the estate that was not devised to particular individuals.
11
Q
Personal representative
A
The person who manages the probate process
FL does not use the term “executor”
12
Q
Intestacy
A
the distribution of assets upon death, when there is NO will or trust
13
Q
For intestacy, Florida law is attempting to follow what?
A
common sense
“If the average person died without a will, what would he probably want us to do with his stuff?”
14
Q
Per stirpes
A
When assets are distributed to descendants, they are split evenly at the first generational level.
15
Q
Florida follows what per stripes rule?
A
Strict per stirpes - minority position on distribution to descendants.
16
Q
Strict per stirpes
A
Assets are distributed under strict per stirpes, meaning at the first generational level, regardless of whether there are any living takers
17
Q
Normally, what is the Intestate share of surviving spouse? What key facts are we looking for that would reduce spouse’s share?
A
In many cases, the surviving spouse will inherit the entire estate when there is no will or trust. We are on the lookout for non-marital children (or other descendants) on either side.
18
Q
Scenario 1: (No descendants): There is a surviving spouse and no descendants.
A
Surviving spouse takes the entire estate.
19
Q
Scenario 2: (Only marital descendants): There is a surviving spouse and all descendants (children, grandchildren) are from the marital couple.
A
Surviving spouse takes the entire estate.
20
Q
Scenario 3: (Dead person has children outside the marriage): There is a surviving spouse and the decedent has descendants from outside of the marriage.
A
Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.
NOTE: This is true, irrespective of whether there are also marital descendants. The marital descendants will benefit along with the non-marital descendants.
21
Q
Scenario 4: (Spouse has children outside the marriage, Dead person has marital children only): There is a surviving spouse, all of the descendants of the decedent are from the marriage, and the spouse has descendants from outside of the marriage.
A
Surviving spouse takes 1/2 and the descendants of the decedent take 1/2 per stirpes.
Here, we don’t want to give 100% to the spouse, because she will provide for her non-marital descendants.
22
Q
Scenario 5: (Spouse has kids outside the marriage, Dead person has no descendants). There is a surviving spouse, the decedent has no descendants, and the spouse has some descendants from outside the marriage.
A
Surviving spouse takes the entire estate. The decedent has no descendants that need to be protected, so we give 100% to the spouse.
23
Q
Whatever assets are not given to the surviving spouse are distributed to the other heirs in the following order, until a taker is found:
A
- Descendants, per stirpes (which means strict per stirpes!);
- Parents;
- Brothers and sisters and their descendants, per stirpes;
- Grandparents and their descendants, per stirpes (one-half to maternal, one-half to paternal);
- Kindred of the last deceased spouse;
- Escheat to the state.
24
Q
Adopted children are treated _________ as natural children of the adopting parents. Adopted children (DO/DO NOT) inherit from their natural families.
A
Adopted children are treated THE SAME as natural children of the adopting parents. Adopted children DO NOT inherit from their natural families.
25
EXCEPTION: Children adopted after a natural parent _______________ can still inherit from the natural parent’s _______________.
EXCEPTION: Children adopted after a natural parent DIES can still inherit from the natural parent’s FAMILY.
26
Non-martial children/Children born out of wedlock are heirs of the _______________ but not of the _______________.
Non-martial children/Children born out of wedlock are heirs of the MOTHER but not of the FATHER.
27
Name the 3 exceptions to the rule that non-martial children are not heirs of their father.
1. A natural parent participated in a marriage ceremony (before or after birth), even if that marriage turned out to be void; or
2. The father acknowledged paternity in writing; or
3. Paternity was established by court adjudication (e.g., by paternity test).
28
Half-bloods
Half-bloods are brothers and sisters who have only one common parent.
29
For purposes of inheritance from collateral-kin (e.g. siblings), half-bloods take _____________as much as whole bloods.
For purposes of inheritance from collateral-kin (e.g. siblings), half-bloods take HALF as much as whole bloods.
30
What is a will?
A will is an instrument executed with certain formalities, which is “testamentary in character.”
31
What does executed mean?
“Executed” means “signed”. When you “execute” a contract, a will, or other legal document, it means you finalize the signing process. Execution does not mean performance.
32
When is a will revocable? When is it operative?
It is revocable during life and operative upon death.
33
In Florida, how many witnesses are required to witness testator sign will? Can they be minors?
In Florida, a will must be signed at the end by the testator in the presence of 2 witnesses. The witnesses can be minors!
34
How must witnesses sign the will?
The witnesses must sign in the testator’s physical presence and in the physical presence of each other.
35
How can the testator sign the will?
The testator can sign in front of witnesses, or alone without witnesses present, if she acknowledges her signature later to the witnesses.
36
What if testator is unable to sign?
If the testator is unable to sign, someone else can sign her name for her. This must be done at the testator’s direction and in her presence.
37
Does a notary need to be present or sign the will?
Ordinarily, wills do NOT require the presence or signature of a notary. However a notary signature is required in some specific circumstances such as a self-proving will or an electronic will
38
At common law, can a beneficiary act as a witness?
At common law, a beneficiary cannot act as a witness to a will. We call them an interested witness because they have an interest in the outcome of the will (and an incentive to lie).
39
In Florida, can a beneficiary act as a witness?
Florida has abolished the common law rule. An interested witness can still inherit under the will.
40
What is an oral will?
An oral testamentary statement.
41
What is a holographic will?
A hand-written testamentary instrument, signed by the testator, with NO witnesses
42
Does FL recognize oral or holographic wills?
Florida does NOT recognize oral or holographic wills under any circumstances.
However, a hand written will that complies with all other formalities (signed and witnessed) is acceptable! There is just no “loosened” standard for hand-written wills.
43
When can an extrinsic document be incorporated by reference into a will?
An extrinsic document can be incorporated by reference into a will if:
1. It exists at the time of execution;
2. It is sufficiently described in the will; and
3. The will manifests intent to incorporate the document.
44
What is the one exception to the requirement that the document needs to exist at the time of execution to be incorporated by reference?
EXCEPTION: There is one scenario where you can incorporate an extrinsic document that does not exist at the time of execution. The testator may produce a list of specific tangible personal property to be distributed to specific persons. The testator may incorporate this list into his will, and thereafter create or modify this list at any time.
45
What does a Self-proving affidavit do?
A self-proving affidavit removes the need to bring witnesses to court to authenticate the signatures at probate.
46
What are the requirements to execute a self-proving affidavit?
The testator and the attesting witnesses sign the will, and then sign a sworn affidavit before a notary public reciting that the testator declared to the witnesses that the instrument was her will, and that the testator and the witnesses all signed in the presence of each other, present at the same time.
Basically, it is an affidavit affirming that the will was executed properly.
47
When can you execute a self-proving affidavit?
The affidavit can be executed at any time subsequent to the will’s execution, but standard practice is to execute both the will and the self-proving affidavit in one ceremony.
48
What is the benefit of a self-proving affidavit?
With a self-proving affidavit, it is no longer necessary to bring the witnesses to court at the time of probate. The affidavit serves as authentication of their signatures. However, if the will is lost or destroyed, we might still need witnesses to testify as to the contents of the will.
49
When is a self-proving affidavit valid? Is a self-proving affidavit required for the will to be valid?
Self-proving affidavits must be notarized. However, the will itself does not require notarization. A will without a self-proving affidavit is still valid, and does not require a notary.
50
Can the witness signatures on the affidavit serve as signatures for the will?
The witness signatures on the self-proving affidavit CAN serve as the signatures to the will itself (for example, if the witnesses accidentally forgot to sign the will and only signed the affidavit).
51
Can the notary's signature on the affidavit serve as a witness signature for the will?
The notary’s signature can also serve as one of the witness signatures, if the notary was otherwise qualified to serve as a witness.
52
What are Codicils? What is required to execute one?
Codicils modify previously executed wills. They require the same formalities as a will.
53
Under the doctrine of republication, when is a will deemed effective? Why is this date important?
Under the doctrine of republication, a will is deemed effective as of the date of the last codicil. This date can be very important for determining whether a spouse or child is pretermitted
54
How can a testator revoke a will by written instrument?
The testator may revoke all or part of a will by codicil or new will.
If by codicil, it must be executed with the same formalities as a will.
55
What happens if the will/codicil does not expressly revoke the earlier will?
If the will/codicil does not expressly revoke the earlier will, the two are read together, with the later instrument revoking the earlier only to the extent of inconsistencies.
56
How can a testator revoke a will by physical act?
A will or codicil may be revoked by burning, tearing, canceling, defacing, or otherwise destroying it with the intent to revoke. The intent must be simultaneous with the act.
57
Can someone else revoke a will by physical act?
The physical act may be performed by another, if done at the testator’s direction and in his presence. Even hearing the sound of ripping paper over the phone is not sufficient.
58
If revocation is by physical act of defacing the language, what must actually be crossed out?
If the physical act is defacing of the language, the defacing act must cross out actual words, not just blank areas.
59
Does Florida allow partial revocation by physical act?
Florida does not allow partial revocation by physical act. If the testator strikes a clause of the will, it has NO effect.
60
Pretermitted spouse
Spouse married testator after will was already executed
61
In FL, what does pretermitted spouse get? Can this right be waived?
In Florida, the pretermitted spouse takes an intestate share, and the remainder (if anything) is disposed of by will. This right can be waived by a pre or postnuptial agreement.
62
pretermitted children
If a testator has a child (born or adopted) after executing his will, the child is entitled to a share of the testator’s estate.
63
What protection does a pretermitted child get? What happens to the gifts to other people?
The omitted child is entitled to an intestate share of the estate (per stirpes). Gifts to other persons are abated to make this gift.
64
When does a pretermitted child NOT inherit?
The pretermitted child does not inherit under the will if:
1. The decedent had one or more children when the will was executed, and
2. Substantially all of the decedent’s estate was given to the other parent of the pretermitted child.
65
What happens to will upon divorce?
Divorce revokes any portions of the will pertaining to the ex-spouse. All other portions of the will remain in effect. Whatever was to be given to the ex-spouse passes to the residual estate.
66
How do you revoke a copy of a will?
If the will has been executed in duplicate (there are two exact “duplicates”, both signed and witnessed properly), an act of revocation performed upon either duplicate of the will constitutes revocation of both duplicates.
However, an act of revocation on an unexecuted copy of the will or a photocopy is not revocation.
But a court may impose a constructive trust upon the estate, if the testator believed that his action was a revocation.
67
How do you reinstate a revoked or invalid will?
If a will has been revoked, or if it is invalid for any other reason, it may be republished and made valid again by:
1. Re-execution of the will according to proper will formalities (e.g., signing the revoked will again with witnesses), or
2. Execution of a codicil republishing it, according to proper will formalities.
68
What happens if a will cannot be found at the time of death?
If a will cannot be found at the time of death, there is a presumption that it was revoked by destruction
69
Can the presumption that a lost will was revoked by destruction be overcome? What would you need to prove to do this?
The presumption can be overcome, and the will can still be offered for probate.
The contents of the will must be proved by:
1. Testimony of 2 disinterested witnesses, OR
2. One disinterested witness and a correct copy
**need to get witnesses as proof even if there is an afiidavit
70
What happens if a beneficiary dies before the testator?
When a beneficiary dies before the testator, the gift has lapse. A lapsed gift passes to the residue of the estate and is divided among the beneficiaries entitled to the residue
71
What are the 2 scenarios where the gift does not lapse?
1) The will says what happens if the beneficiary is deceased: This could be done by identifying an alternative beneficiary, or with language like “To Glen or his heirs and assigns.” In this case, we follow the will’s direction and give the gift to someone else.
2) The beneficiary is a grandparent or descendant of a grandparent: In this case, the “anti-lapse statute” applies (even if no intention was expressed in the will). The gift will automatically pass to the estate of the dead beneficiary.
Note: specific language in the instrument always overrides the anti-lapse statute. If the will tells us what to do, we do it (even if the beneficiary was a grandparent or descendant).
72
What happens if the gift described in the will is no longer in the testator’s estate at the time of death? Will the court look into why the items is gone? What if the item was sold, destroyed, or condemned?
When the item is no longer in the testator’s estate at the time of death, the gift is adeemed. That means it’s gone and the beneficiary is probably out of luck.
This only applies to specific gifts of property. Gifts of money cannot be adeemed.
Generally, the court will not inquire as to why the item was not found in the testator’s possession anymore. Maybe he sold it, gave it to someone else, destroyed it, etc.
However, if the item was sold, destroyed, or condemned, the beneficiary may be entitled to the proceeds of the sale or insurance.
73
what happens if the decedent leaves a will, the spouse is not pretermitted, and the gift to the surviving spouse is small or nothing?
A surviving spouse does not need to accept the gift given in her dead spouse’s will.
Instead, the surviving spouse can choose to take an elective share equal to 30% of her spouse’s “elective estate.”
The elective estate is comprised of the decedent’s probate estate and some non-probate assets, like life insurance, and accounts with other people named as beneficiaries.
74
What does the spouse get in these 3 scenarios?
1. If there is no will?
2. If there is a will and the spouse is pretermitted?
3. If there is a will, but the gift to the spouse is small or nothing?
1. If there is no will: The spouse takes an intestate share.
2. If there is a will and the spouse is pretermitted: The spouse takes an intestate share.
3. If there is a will, but the gift to the spouse is small or nothing: The spouse can take an elective share instead of the gift.
75
Family allowance
The surviving spouse and lineal heirs are entitled to an allowance of $18,000 during probate administration, to cover living expenses.
This is in addition to amounts otherwise passing to the spouse and children
76
Exempt Personal Property Set-Aside
The surviving spouse or surviving minor children are entitled to up to $20,000 of household furnishings, two of the decedent’s personal motor vehicles, and all qualified tuition programs.
This is in addition to amounts otherwise passing to the spouse and children
77
What things related to inheritance can be waived in martial agreements?
Everything relating to inheritance can be waived by a spouse in a valid prenuptial or postnuptial agreement.
That includes gifts by will, intestacy, elective share, family allowance, homestead protections, etc.
78
What financial disclosures are required for prenuptial and postnuptial agreements?
Prenuptial agreements: The spouses are not required to provide financial disclosures.
Postnuptial agreements: The spouses are required to provide accurate financial disclosures.
79
Personal representative
The personal representative is responsible for advancing the decedent’s estate through the probate process.
80
For a testate decedent, the personal representative will be (in this order): NSA
N: The person named in the will, or
S: Person selected by a majority in interest of persons entitled to the estate, or
A: any devisee
81
For an intestate decedent, the personal representative will be (in this order): SSN
S: Surviving spouse, or
S: Person selected by a majority in interest, or
N: Nearest heir
82
Qualifications required to act as personal representative
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(A)dult over 18
(M)ental capacity
Not a (F)elon
(F)lorida resident **OR** (F)amily member
83
Who is a “family member” for the personal representative test? - 4 categories of people:
(1) Anyone related by “lineal consanguinity” to the decedent.
(2) A spouse, brother, sister, uncle, aunt, nephew, or niece of the decedent, or someone related by lineal consanguinity to any such person (includes spouse's parents, spouse's child, but not spouse's sibling)
(3) A legally adopted child or adoptive parent of the decedent; or
(4) The spouse of a person otherwise qualified under this section.
84
Lineal consanguinity
Lineal consanguinity means people above and below on the family tree.
ex: parent, grandparent, child
A sibling is not lineal.
85
Order of payment to creditors in probate:
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1) Expenses of Administration (attorneys and personal reps.)
2) Funeral expenses up to $6000
3) Governmental debts: Debts and taxes having precedence under federal law, medic aid claims and claims in favor of the state for unpaid court costs, fees, or fines.
4) Expenses of last Illness
5) Family allowance (up to $18k for living expenses during probate)
6) Arrearages from court-ordered Child support
7) Decedent’s Business debts acquired after his death, to the extent of business assets.
8) All other claims (including the gifts of the will, intestacy, or trusts)
86
What are the 2 types of simplified probate?
Summary administration and Ancillary administration
87
In what 2 situations does Florida law provide for summary administration?
Available if:
1. The probate estate has value of less than $75,000 OR
2. The decedent has been dead for more than 2 years.
88
What are examples of non-probate assets?
homestead, joint tenancies, and life insurance.
89
When is Ancillary administration available?
Available only when a non-resident dies leaving assets in Florida.
90
When does probate end?
Probate ends when the personal representative is discharged.
91
When do objections to probate need to be raised?
If any person has an objection to the probate proceedings (testate or intestate), he/she needs to come forth before the personal representative is discharged.
92
What happens when the personal representative is discharged?
Once the PR is discharged, probate is final – even if significant new evidence is discovered, like fraud or a conflicting will/codicil
93
When can you reopen probate?
we may reopen probate if new assets are discovered.
94
Does FL allow for the use of electronic wills, codicils, and signatures?
Yes, Florida law allows the use of electronic wills, codicils, and signatures
95
How is an electronic will similar to a paper will?
An electronic will (or codicil) is executed, modified, and revoked in a similar manner as a paper will.
However, some of the formalities of execution are different
96
What is an electronic signature?
An electronic signature is an electronic sound, symbol, or process that is made by a person with the intent to sign and is attached to or logically associated with a document. The person must also understand that he or she is electronically executing the document
97
What are the requirements for the virtual signing ceremony and physical presence of witnesses and notary?
Florida law allows some exceptions to the “physical presence” requirement for witnesses. Witnesses can be present virtually, by means of an audiovisual conference (like skype or FaceTime).
This virtual signing ceremony must be supervised by a notary public, as part of an online notarization session. Notary required if witness to appear and sign electronically. Notary is also allowed to appear and sign electronically
This session must be recorded.
The witness must hear the other signers state that they have signed the document.
The testator must also answer several questions, indicating their age, mental state, location, and the presence of others in the room.
98
What happens if the testator is a vulnerable adult and what does that phrase mean?
If the testator is a “vulnerable adult”, electronic signatures and remote witnesses are invalid. A vulnerable adult is a person 18 years or older whose ability to perform the normal activities of daily living is impaired.
99
How do you revoke an electronic will or codicil? What is the standard of proof?
A testator (or some other person in the testator’s presence and at the testator’s direction) may revoke an electronic will by deleting, cancelling, rendering unreadable, or obliterating it with the intent and for the purpose of revocation.
Revocation of an electronic will in this manner must be proven by clear and convincing evidence (a higher standard than paper wills).
An electronic will can also be revoked by a subsequent will or codicil (in the same manner as a paper will).
100
What happens if the recording of the online notarization session is lost?
If that audiovisual recording cannot be produced, the electronic will is treated as lost or destroyed.
101
What happens if the personal representative can prove that the person must be dead? What is the standard of proof?
If the personal representative can prove that the person must be dead, either by direct or circumstantial evidence, a court can make a ruling of death and probate can proceed. The standard is a preponderance of the evidence.
102
What happens if the personal representative has no evidence that the person is dead?
If the personal representative does not have any evidence to offer on the matter, The Florida Probate Code provides that a person is presumed to be dead if he is absent from his last known domicile for 5 years.
103
What is the Slayer statute? What mental state must the killer have? What is the standard of proof? Must the alleged killer be convicted?
The killer forfeits all rights in the victim’s estate. The property passes as if the killer had predeceased the victim.
The killer must have acted with intent. Negligence is insufficient.
Joint tenancies and tenancies by the entirety are severed and treated as tenancies in common. Homestead protections are forfeitied.
The evidentiary standard is “greater weight of the evidence.” This is lower than the criminal standard.
This rule can take effect even if the alleged killer was acquitted
104
Advancement
An advancement is a gift made to a future heir, with the intent that the gift be applied against the heir’s inheritance
105
when are Inter vivos gifts considered advancements?
Inter vivos gifts are not considered advancements, unless the intention to make an advancement is declared in a contemporaneous writing by the decedent, or acknowledged in writing by the heir.
106
To what decedents do the rules for advancement apply?
The rules on advancements apply to testate and intestate decedents.
107
Do you have to accept an inherited gift? What do you have to do to refuse the gift?
You are not obligated to accept an inherited gift.
| You can refuse the gift by making a disclaimer
108
When are disclaimers valid?
To be valid, the disclaimer must be:
(1) in writing,
(2) describe the interest or power being disclaimed,
(3) be signed,
(4) witnessed and notarized, and
(5) be delivered to the appropriate party.
109
When are you not allowed to disclaim a gift?
In some circumstances, you are not allowed to disclaim a gift:
1. If you have accepted, assigned, encumbered or sold the gift, you cannot disclaim it.
2. If you are *insolvent* you cannot disclaim a gift (aka you owe more $ than you got)
110
What is a No-contest clauses? is it enforceable?
A provision in a will that attempts to penalize a beneficiary for contesting the validity of will is unenforceable
111
What is a caveat and who can file it?
Florida allows “interested persons” to file a notice with the court called a “caveat.” Once the caveat is filed, the caveator is entitled to formal notice of all probate proceedings
112
When can creditors file a caveat?
Creditors may only file a caveat after the debtor’s death.
113
When can all other interested, non-creditor persons file a caveat?
All other interested persons may file a caveat before or after death
114
T/F: Creditors have a limited time to make their claims against a decedent’s estate.
If the creditor is unaware of the probate proceedings, the creditor may not file its claim in time.
True: Creditors have a limited time to make their claims against a decedent’s estate.
If the creditor is unaware of the probate proceedings, the creditor may not file its claim in time.
115
What is a simultaneous death?
Spouses either died simultaneously, or the doctors cannot determine who died first
116
What law do we apply when there is a simultaneous death? How does the property pass under this law?
We apply the Uniform Simultaneous Death Act (USDA). The USDA only applies if the deaths were simultaneous or the order of death cannot be determined. If we can prove that one spouse survived by even one second, we do not apply USDA.
The property of each decedent passes as if he/she had survived the other.
117
Do you have to accept the USDA?
You don’t have to accept the USDA. If the governing will or trust says that the USDA shall not apply, the courts will not apply it even if there is a simultaneous death
