Wills and Trusts

Question 1

The testator is PISST

What are the technical requirements of a will?

Answer 1

1. Present testimentary intent
2. In writing
3. Signed by the testator
4. Scope of vision of two witnesses
5. Testatator with capacity
   6.

Question 2

How is the intestate estate divided among a surviving spouse and descendants of the testator?

Answer 2

Question 3

How is the intestate estate divided after exhausting immediate descendants and a surviving spouse?

Answer 3

Question 4

Simultaneous Death

Answer 4

Florida adopted the Simultaneous Death Act.

When a disposition depends on the order of death between two persons, each person’s estate is treated as though he had survived the other, unless there are specific contrary provisions of the will.

Question 5

What is required for effective disclaimer?

Answer 5

1. Writing
2. Describing the disclaimed interest
3. Signed
4. Witnessed
5. Delivered (& recorded if real property)

Question 6

When is disclaimer barred?

WAIV Sale

Answer 6

1. Written waiver of right to disclaim
2. Acceptance of property/benefit
3. Insolvent beneficiary
4. Voluntary assignment or encumberment
5. Judicial sale

Question 7

What is the scope of vision test?

Answer 7

Witnesses are considered present if they could have seen the testator signing the will if they were only to look.

Question 8

Self-Proving Will

Answer 8

1. All staturory will formalities met
2. Signed before a notary public

Question 9

Incorporation by Reference

Answer 9

A document may be incorporated by reference if:

1. Already in existence at the time
2. Sufficiently described in will
3. Will shows intent to incorporate the document

Exception: A list of tangible personal property may be referenced and created and altered later

Question 10

Pretermitted Spouse Rule

Answer 10

A spouse who marries a testator after the execution of a will takes an intestate share, unless:

1. A pre-marital agreement dictates otherwise
2. The spouse is explicitly included
3. The spouse is explicitly excluded

Question 11

Effect of Divorce on Prior Spouse

(Wills and Trusts)

Answer 11

Prior spouse is treated as having pre-deceased the testator

Question 12

How does revocation by physical act work?

Answer 12

A will or codicil can be revoked by

1. Burning, tearing, cancelling, defacing, obliterating, or destroying
2. The orginal instrument, or a true copy
3. Concurrently with the intent to revoke
4. By the testator, or at his direction and in his presence

Partial revocations by physical act are a nullity.

Question 13

Dependent Relative Revocation (DRR)

Answer 13

When a testator holds a mistaken belief about the disposition of his property,

but for which he would not have revoked a will,

the will is treated as if it were not revoked.

Question 14

Anti-Lapse Statute

Answer 14

If a predeceasing beneficiary has surviving descendants,

they shall take his share of any devise per stirpes if

the predeceased beneficiary was the testator’s grandparent or descendant of a grandparent.

Question 15

Ademption

Answer 15

Failure of a devise becuase the property is no longer in the testator’s estate at the time of death.

ONLY applies to specific devises;

NOT applicable for general devises, or demonstrative legacies

Question 16

Spouse’s Elective Share

Answer 16

30% of the elective estate

Must file on or before the earlier of:

1. 6 months of notice of administration OR
2. 2 years after death

Question 17

Elective Estate

(HIP3R Life Insurance)

Answer 17

1. Probate estate
2. Descedant’s interest in protected homestead
3. POD accounts & JT/TBE property
4. Revocable trusts
5. Irrevocable transfers with a right to income or principal
6. Cash proceeds from life insurance
7. Pension death benefits
8. Property transferred within one year of death

Question 18

Homestead Estate

(elements and effect upon death)

Answer 18

Elements:

1. 1/2 acre inside a municipality or
2. 160 contiguous acres outside,
3. and not held as JT/TBE property

Effect:

1. Not devisable if owner is survived by spouse or descendants.
2. May be devised to spouse in fee simple if no minor children
3. Exempted from forced sale by creditors
4. If improperly devised, passes to decedent’s spouse as a life estate, with a vested remainder to descendants per stirpes

Question 19

Family Allowance

Answer 19

$18,000 to surviving spouse and lineal heirs who were receiving or owed support

Amount reserved on top of any amount entitled to under the will

Must be petitioned for specifically

Question 20

Personal Property Set-Aside

Answer 20

1. $20,000 of household furnishings
2. 2 of decedent’s motorvehicles
3. All qualified tuition programs

On top of any amount receiving under the will, homestead claims, or by intestacy

Question 21

Undue Influence

Answer 21

1. Influence was exherted
2. Effect was to overpower the mind and free will of the testator
3. The product was a will that would not have been executed otherwise

*Presumed in the case of a person with a confidential relationship who was active in procuring the will

Question 22

Capacity

Answer 22

Testator must be able to:

1. Understand the nature of his property
2. Understand the persons who are the natural objects of his bounty
3. Understand the practical effect of the testamentary act

Question 23

Order of Creditor Claims

[Administrative Family Debt Means Families Can’t Buy Anything else]

Answer 23

1. Administration costs
2. Funeral costs up to $6000
3. Debts and taxes owed under federal law or in favor of the state
4. Medical costs for last 60 days of life
5. Family allowance ($18,000)
6. Arrearage from court-ordered child support
7. Business debts accruing after death (Can’t exceed business assets)
8. All other claims

Question 24

Time to Notice/File Claims on D’s Estate

Answer 24

Notice

1. Publish notice once per week for 2 weeks in newspaper in the county of administration
2. Personally serve known/ascertainable creditors within 3 months
3. Personally serve notice of administration on spouse, beneficiaries, trustees, persons entitled to exempt property

File Claim

​Creditor with notice must file before the later of:

1. 3 months after publication
2. 30 days after service of notice

Creditor without notice must file within 2 years of death

Question 25

Types of Administration

Answer 25

Summary

1. No real property in estate AND
2. Estate value less than $75,000, or
3. Decedent dead more than 2 years

Ancillary

1. Decedent a nonresident with property in FL, and
2. Will and codicils are valid under FL law

*Law of D’s domicile will still control, unless proved otherwise

Standard

Everything else

Question 26

What are the technical requirements of trust creation?

3 People, 1 Thing, 1 Reason

Answer 26

1. Settlor with capacity and legal title
2. Trustee with duties
3. Ascertainable beneficiaries
4. Specific property
5. Valid purpose

Question 27

Attorney Compensation from a Trust

Answer 27

Attorney or relative cannot receive compensation if attorney prepared or supervised the trust execution unless:

1. Attorney or relative is related to settlor, or
2. Attorney gives written disclosure to settlor

Question 28

What constitutes an invalid purpose?

Answer 28

1. Illegality
2. Contrary to public policy
3. Impossible to acheive
4. Intent to defraud creditors
5. USRAP violation (360 years)

Question 29

Can a trust be created orally?

Answer 29

Yes. Except:

1. Trusts of a testamentary nature must comply with the formalities of a will, and
2. Trusts including interests in real property must be in writing and signed by the settlor

Question 30

How are charitable trusts distinct from private trusts?

Answer 30

1. Beneficiaries MUST be indefinite
2. Trust may be perpetual
3. Cy Pres doctrine applies

Question 31

Effect of Spendthrift Trust

Answer 31

Beneficiary cannot assign his interest.

Creditor’s cannot attach to beneficiaries interest, until income is received.

Question 32

When is judicial modification/termination available?

Answer 32

Modification

1. Trust purpose has been fulfilled, becomes illegal, wasteful, or impracticable
2. Unanticipated circumstances cause compliance to substantially impair the purpose
3. Material purpose no longer exists, or
4. To match settlor’s intent after proof of mistake by clear and convincing evidence

*Trust may explicitly forbid judicial modification, in which case it may terminate (resulting trust)

Termination

1. Settlor and all beneficiaries consent, or
2. Settlor is dead, all beneficiaries consent, and termination would not interfere with material purpose (not available for spendthrift trusts)

Question 33

Duties of Trustee

(SNAPPLE facts are trustworthy)

Answer 33

1. Separate and earmark property,
2. No commingling of assets
3. Administration of trust (prudent, good faith, impartial)
4. Preservation of assets (Prudent Investor Rule)
5. Production of income (Prudent Investor Rule)
6. Loyalty (no self-dealing or favoritism)
7. Each breach determined independently

*Also must report status at least annually

Question 34

Delegation of Trustee Duties

Answer 34

May delegate investment and management functions,

but must still act prudently in selection, contracting, and oversight.

Question 35

Damages from Trustee Breach

Answer 35

1. Restoration of trust assets to what they would have been absent breach, or
2. Amount of trustee’s profit from breach

Question 36

Statute of Limitations for Breach of Trust

Answer 36

4 years max

Within 6 months of receipt of any report of breach

Statute tolled in cases of fraud, until the beneficiary knows or should have discovered it

Question 37

How is a trustee generally paid?

Answer 37

50/50 out of principal and income, unless otherwise adjusted by the trustee or fixed by the trust

Question 38

Uniform Transfers to Minors Act

Answer 38

Allows for the transfer of title to property to a minor who would otherwise not have capacity, to be held by another in trust until the minor reaches the age of majority.

Trustee has duty of an ordinarily prudent person dealing with the property of another.

Question 39

Resulting Trust

Answer 39

Equitable for dealing with unjust enrichment arrising from

Purchase money resulting trusts

• Payment on behalf of another for purchase
• Not for close family

Failure of express trusts

Incomplete disposition of assets