Wills COPY Flashcards
(119 cards)
1
Q
Requirements for a valid will . . .
A
A. T must be 18 or over.
B. Will must be in writing. (do not give effect to oral statements)
C. T must sign will . . .
(Any mark-initials, “X” will serve as signature if so intended. Signature may be another person at T’s direction, in T’s presence.)
[PBQ: If such other person also signs her own name, she counts as one of the two necessary witnesses]
D. . . . at the end of the will . . .
E. . . . in the presence of two witnesses.
(OR, T must acknowledge previous signature in their presence)
F. . . . who sign in testator’s presence . . .
G. . . . and in the presence of each other. [PBQ]
NOTE: [PBQ2] No publication requirement. (W’s need to know that the document that they are witnessing is a will
(if they thought it was a deed or insurance policy etc., it doesn’t matter)
[PBQ] Order of signing is immaterial if attestation ceremony is all part of one continuous, contemporaneous transaction.
2
Q
What happens if a portion of the will (e.g., clause naming personal representative) follows the testator’s signature? [PBQ]
A
a. Clause present at time of execution:
1. Majority view:Everything above is good; and everything below is bad. Signature is end of the will.
- Florida:[PBQ] The “end” is referring to a time sense, not a place on the document.
b. Clause added after execution:
uniform rule throughout the US - the Will is valid but the addition is not.
3
Q
Rules on holographic wills . . .
A
a. Some states: Holographic wills allowed. Entitled to probate if in T’s own handwriting and signed by her.
b. Florida and most states: No special break for holographic wills (i.e. that the will is in the T’s own handwriting - we req. witnesses)
Compare: Handwritten will witnessed by two witnesses. [PBQ] - Valid.
4
Q
Presence requirement tests for witnesses . . .
A
“Scope of vision” test (minority rule): in each other’s presence only if they could see each other sign were
they to look; HYPO: flunk b/c of screen”
Conscious presence” test (majority, better rule): if they are conscious of where each other is and what each other is doing.
Florida?
no definitive authority; NEED TO MENTION BOTH VIEWS
5
Q
T writes a document in her own handwriting that reads: “This is my last will. I revoke all earlier wills. I leave everything to the YMCA.” T signs the instrument. Is it admissible to probate? [PBQ2]
A
No witnesses.
6
Q
T, a domiciliary of Spain, executes a will, written in Spanish, that complies with the law of Spain but not that of Florida. Thereafter, T dies owning Florida real estate. [PBQ2]
a. Must T’s estate be administered in Florida?
b. Is T’s will valid in Florida given the fact that _____ It is written in Spanish?
_____ It does not meet the Florida wills statute?
A
a. Yes. Primary admin will be domicile at death, but we have a side show - ancillary admin in each place owned real prop
b. Yes, but must provide court with translation
Yes, if it meets either the FL or the law of the decedents domicile at the time of execution.
NOTE: it cannot be an unattested holograph.
7
Q
Effect of interested W . . .
A
will or any provision thereof is not invalid because the will is signed by an interested witness.” [PBQ]
“I give to my faithful nurse Nell the sum of $30,000.” Nell is one of two attesting witnesses to the will. Does Nell take the $30,000 bequest under the will?
Answer: ______ “A will or any provision thereof is not invalid because the will is signed by an interested witness.” [PBQ]
Yes. Bad practice b/c creates implication of undue influence. They have to prove it. If they do, then she can’t take.
8
Q
Proof of wills at probate requires . . .
A
Oath of any one attesting witness taken before circuit judge or court clerk. If witnesses cannot be located or are incompetent or dead, oath of personal representative that he believes the writing to be the decedent’s last will. [PBQ]
9
Q
Self proved wills require . . .
A
At time will is signed by T and attesting witnesses (or some time thereafter, in T’s lifetime), T and witnesses sign self-proving affidavit under oath before notary public. Affidavit recites all elements of due execution. Formalities of execution (but not mental capacity, lack of fraud, undue influence, etc.) conclusively presumed. [PBQ]
No one can contest the will for want of formality . . . can still go after capacity etc.
NOTE: [Charry (1979)] Witness signature on self-proving affidavit can be used to satisfy the “signed by two witnesses” requirement.
10
Q
Effect of SOL on probate . . .
A
STATUTE OF LIMITATIONS: Once administration of an estate is completed, everything is final. Thus, a later discovered will cannot be admitted to probate. [PBQ]
11
Q
Revocation by physical act requires . . .
A
(i) intent to revoke; (ii) physical act: Florida statute refers to “burned, torn, canceled, obliterated, or destroyed.”
12
Q
In 2009 T properly executed a will in duplicate giving all property to her children. In 2011 she wrote “VOID” on one of the copies of the 2009 will and drew many vertical lines across front of the one-page document.
a. Will revoked?
b. Compare: “VOID” written on back of will. [PBQ]
c. Compare: “I cancel this will” written and signed in margin of will.
d. Compare: “VOID” written on face of Xerox copy.
A
a. Writing void over language helpful b/c clarifies intent, BUT NOT CRITICAL Just drawing one line + intent is enough.
b. No good! Must cross SOME of the language
of the will.
c. No! Must be over some language.
d. NO. Must cross the language of the will itself.
13
Q
An act of revocation on one executed copy revokes . . .
A
all executed copies.
14
Q
Revocation presumptions . . .
A
1) Will in T’s possession from time of execution until death and found in mutilated condition after T’s death. Presumption: T did the act with intent to revoke.
2) Will last seen in T’s possession and control not found after T’s death. Reason it can’t be found is that T destroyed with intent to revoke.
NOTE: Rebutable . . . someone else had access to the will and might have done this.
15
Q
T calls his attorney, the place where the will is located, and orders his attorney to destroy T’s will. The order is never carried out.
a. Will revoked?
b. What if on the above facts the attorney had destroyed the will pursuant to T’s order? Would the will have been effectively revoked?
Revocation by another person must be (i) _________________________________ and (ii)_____________________________________________________________
c. But if in this latter situation the will was not revoked, how could it be probated given the fact that it has been destroyed?
A
a. No. Revocation by act requires intent + act (intent alone is never enough)
b. No. B/c revocation by proxy must be done . . .
i. at T’s direction
ii. in T’s presence
c. by satisfying “lost wills” statute.
16
Q
How do we satisfy the “lost wills” statute . . .
A
• Due execution must be proved by testimony of attesting witnesses.
• Contents must be “clearly and distinctly proved by the testimony of at least two
disinterested persons,” a correct copy being the equivalent of one of them.
[1980 case] “Correct copy” means carbon or Xerox copy, not a typewritten draft from which only a few minor changes had been made.
17
Q
Additional issue raised by case where attorney bungs up revocation of will or where attorney bungs up execution of will: Lucas v. Hamm:
A
CA SC held and FL courts agree . . . attorneys can be sued in negligence. Tort liability.
18
Q
T’s 2005 will leaves Blackacre to X, her diamond ring to Y and residue to Z. T’s 2008 codicil leaves $5,000 to Y and her diamond ring to M. Codicil does not expressly revoke earlier will. Who takes what?
1) AstoM:
2) AstoY:
3) AstoX:
4) AstoZ:
A
Revocation by inconsistency . . . .
a. Where codicil makes no reference to will but contains slightly inconsistent provisions, to the extent possible the will and codicil are read together. But to the extent of any inconsistent provisions, the later document controls and thereby revokes by inconsistency the prior will. Result on above facts:
- M gets the ring
- Y takes $5,000 but not the ring
- Still gets Blackacre
- Z gets the residue (NOTE: it’s a different residue)
b. Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not automatically revoke the will. Instead, in absence of contrary intent, it is presumed that testator intended his will as originally executed. [PBQ] pg. 5
19
Q
Revocation of a will revokes all codicils thereto. BUT revocation of a codicil to a will does not . . . .
A
automatically revoke the will. Instead, in absence of contrary intent, it is presumed that testator intended his will as originally executed. [PBQ]
20
Q
Rule on divorce and separation following a will . . .
A
RULE: divorce, following a will, revokes all provisions in favor of the ex-spouse; construe the will as if ex-spouse
were dead.
Mere separation does not affect her rights under the will.
21
Q
T’s will devises entire estate “to my wife, Sheila if she survives me; if she does not survive me, in trust for my children.” The will names Sheila as personal representative “if she is able”; otherwise X is to serve as personal representative. Two years later Sheila divorces T; T dies two years after that without having revoked or modified his will. T is survived by Sheila, by two children and by X.
a. Who takes what? Who serves as personal representative? [PBQ2]
b. What if T and Sheila merely separate without obtaining a divorce? [PBQ]
c. Compare: Separation with complete property settlement:
d. Will Sheila be allowed to take as a beneficiary of T’s non-probate transfers such as a revocable trust, an insurance policy, or bank accounts and securities registered in POD or TOD form?
e. What if T and Sheila marry each other again?
A
a. RULE: divorce, following a will, revokes all provisions in favor of the ex-spouse; construe the will as if Sheila
were dead.
b. Mere separation does not affect her rights under the will.
c. However, if in conjunction with separation, they enter into a prop settlement = waiver and construe as if she were dead.
d. No, she will not be allowed to take under any of those arrangements
e. She is back in these instruments.
22
Q
Can an interlineation be given effect?
A
No, UNLESS . . .
- after the change was made T re-executes the will OR
- republishes the will by codicil (occurs when make the change on the will and then on sep sheet
of paper we write out reaffirmation to execute will as change and then do all the stuff that makes will
compliant) NOTE: bottom line, have to do all the formalities again with either.
23
Q
T’s typewritten will made a bequest of “$10,000 to my friend X.” Subsequent to the will’s execution, T drew a line through the figure “$10,000” and wrote in above it “$15,000.” T then signed his name in the margin opposite the change. [PBQ2]
a. Can the interlineation ($15,000 bequest) be given effect?
b. Has the $10,000 bequest to X been revoked?
c. Bottom line:
A
a. No, UNLESS . . .
1. after the change was made T re-executes the will OR
- republishes the will by codicil (occurs when make the change on the will and then on sep sheet
of paper we write out reaffirmation to execute will as change and then do all the stuff that makes will
compliant)
b. No. B/c in FL, there can be no partial revocation by physical act
(We can revoke in entirety by physical act; but not partial)
So X gets 10k.
We can revoke expressly: “I revoke xxxxxx of my will . . . “ and then do formalities.
c. bottom line, have to do all the formalities again with either.
24
Q
In 2003, T executes WILL-1 which devises his residuary estate “in trust to pay the income to my grandson G until he attains the age of thirty, at which time to distribute the principal to G.” In 2008, T executes a new will, WILL-2, “hereby revoking all wills heretofore made by me.” WILL-2 devises his residuary estate to G outright. Important part of the story: T does not destroy WILL-1. In 2010 T has yet another change of heart. He has his housekeeper bring both wills to him, reads them both and tells the housekeeper, “You know, I think the property should be held in trust for G after all.” With this he destroys WILL-2 with the intent of reviving WILL-1. T dies in 2012. He is survived by G and by his daughter, S, whom he detests.
a. Who takes what? [PBQ2]
b. Has WILL-1 been revoked?
c. Has WILL-2 been revoked?
d. Revival: Did revocation of WILL-2 “revive” WILL-1?
e. Should Dependent Relative Revocation [DRR] be applied to undo the revocation of Will-2? [PBQ2]
A
begin earliest in time when analizing and move to the present.
b. Yes, in 2008 at the execution of WILL-2.
c. Yes, by physical act.
d. NO! Have to re-execute or republish by codicil
e. HAS TO COMPLY WITH lost will statute . . . assuming it does then . . .
DRR allows us to disregard a revocation which is based on, induced by, or premised on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
1) Disregard a revocation (the destruction of Will-2).
2) Because it was based on a mistake of law (that Will-1 would be revived).
3) Provided the court thinks T would not have revoked Will-2 but for the mistake.
the BUT FOR test provides the key to this doctrine . . . compares the consequences of undoing the
revocation with not undoing. If we don’t = daughter who he detest; If we do = it goes to G outright
*he wanted to G in trust; going to G outright is closer, so the courts will go with that)
25
Another DRR example: T properly executes Will-1. Subsequently, T defectively executes a second instrument with similar terms. This second instrument is invalid, however, because there is only one witness. Nevertheless, believing the second instrument to be valid, T revokes Will-1 by physical act. On these facts, a court could apply DRR to _____, b/c _______.
undo the revocation of Will 1
b/c based on mistaken belief that Will 2 was valid. Compares the consequences of undoing the
revocation with not. Undoing the revocation of Will 1 will more closely follow intent.
26
Requirements to incorporate an extrinsic document by reference:
(i) Writing must be in existence at time will was executed.
(ii) Will must manifest an intent to incorporate the document.
(iii) Will must "describe the writing sufficiently to permit its identification."
27
T's will, after making several specific bequests, devised Blackacre "as designated in a memorandum, that I plan to write, and that will be found attached to this will." After T's death, her will and a signed but unwitnessed typewritten note were found in an envelope marked "My Will." The accompanying note read: "I give Blackacre to the American Cancer Society." The note was dated two months after the date on the will. T's sole heir was a distant cousin, Henry, of whom she was not fond and from whom she had not heard for many years. Who takes Blackacre? [PBQ2]
NOT the American Cancer Society
Not executed with formalities, so the only way to give validity would be incorporation by reference . . . . first one is flunked under these facts.
Where do we go; need more facts . . . will go to residuary beneficiary but we don't know who that is.
28
Statutory exception in FL and many states regarding extrinsic documents . . .
Statutory exception found in Florida and many states. Will may refer to written statement or list that disposes of tangible personal property (other than money, property used in trade or business) not specifically disposed of by the will. The written list must be signed by T and it must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
the key is the type of property - tangible personal property (NOTE: no stocks and bonds)
29
What if the will made reference to "a memorandum that I plan to write that makes disposition of various items in my home that are dear to me." The accompanying note, written two months after the will was executed, says, "I leave my golf clubs to my friend, Hobie Gates and $2,000 to my daughter Donna. /s/ Tom Testator." Are these valid dispositions? [PBQ3]
Yes as to the golf clubs, no as to the cash.
Statutory exception found in Florida and many states. Will may refer to written statement or list that disposes of tangible personal property (other than money, property used in trade or business) not specifically disposed of by the will. The written list must be signed by T and it must describe the property with reasonable certainty. May be written before or after will executed; may be altered at any time.
the key is the type of property - tangible personal property (NOTE: no stocks and bonds)
30
doctrine of independent significance:
acts, having an independent lifetime motive, may impact on the will as well.
(most people don't sell cars for will purposes, they do it for lifetime reasons; same with employees . . . . if we can find
any lifetime motive, we allow it to impact the will - so Ned gets the new car and the new employees get the cash
they have even said that "the contents of my living room" is lifetime)
31
"I devise the automobile that I own at my death to my nephew, Ned. I give the sum of $1,000 to each person who is in my employ at death." Three months after the will is executed T trades his Volkswagen in on a new Cadillac; the effect is to increase the value of the gift to Ned from $1,000 to $9,000. Six months after that T fires two longtime employees and hires three new ones. Then T dies. What is the effect of these events on T's will? [PBQ2]
doctrine of independent significance: acts, having an independent lifetime motive, may impact on the will as well.
(most people don't sell cars for will purposes, they do it for lifetime reasons; same with employees . . . . if we can find
any lifetime motive, we allow it to impact the will - so Ned gets the new car and the new employees get the cash
they have even said that "the contents of my living room" is lifetime)
32
[1987 Florida case] T devises "my home and its contents" to brother Bill.
a. _____ Does Bill take household furnishings and works of art found in house?
b. _____ How about stock certificates and savings accounts where certificates and passbooks found in dresser drawer in the house?
c. _____ How about the Cadillac located in the garage attached to the house?
a. Yes.
b. No. Home not intended to transfer anything manifested by cert of
title.
c. No. Only those things that turn a house into a home.
33
How do we construe the will in light of post execution/pre-death occurrences?
VERY IMPORTANT ISSUE . . . paragraph if essay . . .
When beneficiary named in the will or revocable trust dies before the testator, the gift lapses (term of art meaning the gift fails, falls to the residue, and passes to the residuary estate) . . . .
b. UNLESS
it is saved by the state's anti-lapse statute
c. The Florida statute applies when the predeceasing beneficiary is he testator's grandparent or a descendent thereof who leaves issue (issue = lineal descendants - children, grandchildren, great grand etc.
```
NOTE: (doesn't apply to someone
who not related at all; or
someone who is distantly
related; and doesn't apply
to the T's own spouse b/c
won't be a grandparent or
descendent of grandparent)
```
34
T executes will in 2004; it provides (inter alia) "I give the sum of $5,000 to my sister, Paula." Paula dies in 2005; she is survived by her husband H and two children. Paula has a will which leaves all of her estate to H. T dies in 2010. Who takes the $5,000?
a. Result on above facts:
b. But what of fact that Paula left a will devising all her property to H?
c. What if will said "$5,000 to my sister Paula, if she survives me."
a. Paula's 2 kids split the 5k.
When beneficiary named in the will or revocable trust dies before the testator, the gift lapses (term of art meaning the gift fails, falls to the residue, and passes to the residuary estate) UNLESS
it is saved by the state's anti-lapse statute. The Florida statute applies when the predeceasing beneficiary is he testator's grandparent or a descendent thereof who leaves issue (issue = lineal descendants - children, grandchildren, great grand etc.
```
NOTE: (doesn't apply to someone
who not related at all; or
someone who is distantly
related; and doesn't apply
to the T's own spouse b/c
won't be a grandparent or
descendent of grandparent)
```
b. Why doesn't H get the money? The anti-lapse statute tells us who takes. It does
not allow Paula to designates something else. Paula's kids take the 5k.
c. The anti-lapse statute no longer applies. Gift fails under its own terms.
35
Class gift rule . . .
When there is a gift by will to a group of persons generically described as a class ("children," "nephews" and nieces," etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
36
"I devise Blueacre to the children of my good friend, John Bates. I leave the residue of my
estate to X." At the time T executes his will, John Bates has three children: A, B and C. Thereafter, during T's lifetime, Bates has another child (D), and his son A dies leaving a child A Jr. Then T dies; he is survived by John Bates; by Bates's three children, B, C and D; by Bates's grandchild A Jr. and by X. a. Who takes Blueacre?
b. What if in the above example, the gift were to the children of my brother John Bates?
Class gift rule: When there is a gift by will to a group of persons generically described as a class ("children," "nephews" and nieces," etc.) and some class member predeceases the testator and the lapse statute does not apply, the surviving class members take.
a. ANSWER: B, C, and D (aka. Bates children at T's death)
b. Now we are back under the anti-lapse - B, C, D and A Jr.
37
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason then . . .
the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. (like class gift rule)
38
"I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates and by Carter. Who takes the residuary estate? [PBQ2]
What if, in 18, it was T's sister Carla who predeceased T leaving a child (Carla Jr.) who survived T? Andrews and Bates also survived T. [PBQ]
a. 1/2 Bates; 1/2 Carter
If the residuary estate is devised to two or more persons and the gift to one of them fails for any reason then the surviving residuary devises take the entire residuary estate in proportion to their interests in the residue. (like class gift rule)
b. 1/3 each to A, B, and C Jr. Carla's share of residue preserved for C Jr. by virtue of FL anti-lapse statute.
39
Specific devise or bequest and examples . . .
gift of specific asset and that
asset ONLY
"I devise Blackacre [my 2005 Cadillac] to my son John."
How about "my car" or "all of my bank accounts"? these too are specific gifts b/c a will speaks as of the
date of death
40
Demonstrative legacy and example . . .
hybrid; pecuniary amount + funding
instructions.
"I give the sum of $5,000, to be paid out of the proceeds of sale of my Acme stock, to my sister Sarah."
41
General legacy and example . . .
gift of a specified pecuniary amount.
"I give the sum of $10,000 to my daughter Donna."
42
Example of residuary bequest:
"I give all the rest, residue, and remainder of my property to my wife, Agnes."
43
What if T's estate is partially insolvent? In what order are the gifts sacrificed to satisfy funeral expenses, expenses of administration, creditors' claims?
1. intestate property
2. residual bequest
3. general legacy
4. demonstrative legacy
5. specific devise or bequest
Start at the bottom and work up. Not at the bottom of the will given, but at the bottom of the list above.
Pay the expenses first; then use the money for general legacies; if not enough, then sell demonstrative legacy etc.
44
"I devise all the rest, residue and remainder of my estate in equal shares to my good friend Alan Andrews, my business partner Betty Bates and my sister Carla Carter. Alan Andrews predeceases T, leaving a child (Alan Jr.) who survives T. T, a widower, is also survived by Bates and by Carter.
a. Same will provisions. Some years before her death T sold Blackacre, which was specifically devised to John. What is the effect on the devise to John?
b. Also, T had sold her Acme stock and did not own any such stock at her death. Does ademption apply to the gift to Sarah?
a. John's gift is adeemed. Beneficiary takes nothing.
Note: Abatement rules also apply in satisfaction of elective and pretermitted shares. [PBQ]
b. No. Ademption does not apply to demonstrative legacies. We take it out of whatever is available to us.
Broader point: doctrine of ademption is limited to specific gifts; if it is not specific, it is not adeemed; we fund
it with whatever we have available
45
Abatement rules also apply in satisfaction of . . .
elective and pretermitted shares.
46
FL statutory provisions "taking the edge off" the common law rule of ademption . . .
Every one of the following Florida provisions reverses the common law rule, which applied the doctrine of ademption to any case where the property specifically devised was not in the estate for any reason. At common law, T's intent was deemed to be immaterial. However, under Florida law the following rules apply to gifts from a will or a revocable trust:
1. Will executed before T declared incompetent: If specifically devised property is sold by guardian, or if condemnation award or insurance proceeds relating to the property are paid to the guardian, the specific devisee has a right to a general legacy equal to the net sale price, condemnation award, or insurance proceeds unless testator's disability has been adjudicated to have ceased and testator survives the adjudication by one year. [PBQ2]
2. A specific devisee has the right to the remaining specifically devised property and:
47
"I give and bequeath my Rembrandt painting to my daughter Dora." The Rembrandt painting was incinerated in 2012. The painting was insured, and the insurance company duly paid its full value of $150,000 to T. Subsequently, T dies. Is Dora entitled to the insurance proceeds?
No. Dora is adeemed. The incompetency statute doesn't come into play. (Any amount of fire or casualty insurance
UNPAID, but here he lived long enough to collect the insurance)
48
"I bequeath my 100 shares of stock in Tax Shelters, Inc. to my son, Simon." At his death T owned 200 shares of stock in Tax Shelters, Inc., consisting of the 100 shares he owned when he executed the will, plus 100 shares distributed to T by the corporation six months after the will was executed.
a. How many shares does Simon take?
b. What if, instead, Tax Shelters was acquired by Ling-Temco-Vought, and as a part of the merger each shareholder was given one share of LTV for every two shares of Tax Shelters, Inc. At T's death he owned 50 shares of LTV stock. Does Simon get the LTV stock? (Same rule for revocable trusts) [PBQ2]
a. Specific devisee takes "any additional or other securities of the same entity owned by the testator because of action initiated by the entity, excluding any acquired by exercise of purchase options." (Same rule for revocable trusts.
ANSWER: 200
b. Yes. Specific devisee gets "securities of another entity owned by the testator as a result of merger, consolidation, reorganization, or other similar action initiated by the entity."
49
"I bequeath my 100 shares of Coronado common stock to A; I bequeath 200 shares of Baker Company stock to B." Thereafter T sells all of her Coronado stock and all of her Baker stock. (Same rule for revocable trusts) [PBQ]
a. What are A's rights?
b. What are B's rights?
a. "My" - the gift is specific and A is adeemed
b. Without "my" - it's not specific (it's a gift of the value to be paid in kind) - some courts call that general and some demonstrative - we just need to know not specific and for that reason B is not adeemed. So personal rep will take cash and purchase the shares we need.)
MY IS RELEVANT ONLY WHEN STOCK!!!!
50
A specific devisee of encumbered property _____entitled to have the encumbrance paid out of the residuary estate unless_____
is not.
the will shows such intent.
51
"I devise Gatoracre to my son, Sylvester. I devise my residuary estate to my wife, Willette." At T's death Gatoracre is subject to a mortgage that is security for a note on which T was personally liable. Sylvester demands that the personal representative pay off the indebtedness ("exonerate the lien") so that Gatoracre will pass to him free and clear of the encumbrance. Is he so entitled?
No.
A specific devisee of encumbered property is not entitled to have the encumbrance paid out of the residuary estate unless the will shows such intent. "A general direction in the will to pay debts does not show such an intent." (Same rule for revocable trusts)
52
"I give $5,000 to my nephew, John Paul Jones." At the time T executed the will he had two nephews whose names were James Peter Jones and Paul Frederick Jones. T had never met nor corresponded with either nephew, and no nephew named John Paul Jones ever existed. Who takes the $5,000? [PBQ2]
latent ambiguity: on the surface, everything looks fine
RULE: extrinsic evidence is admissible to clear-up a latent ambiguity; if none, goes to residuary
(ex. suppose JPJ came fwrd with a packet of later over the course of years in which he referred to him as
John Paul J)
53
Only 2 scenarios on bar for ambiguities and mistakes . . .
1. latent ambiguity
| 2. mistake
54
Rule on mistake . . .
1. majority = leave as will stated
2. FL = Upon application of any interested person, a court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law. In determining the testator's original intent, the court may consider evidence relevant even though the evidence contradicts an apparent plain meaning of the will
55
Upon application of any interested person, a court may reform the terms of a will, even if ______, to conform the terms to the testator's intent if it is proved by _______ that both the accomplishment of the testator's intent and the terms of the will were _____. In determining the testator's original intent, the court may consider evidence relevant even though _____.
Upon application of any interested person, a court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law. In determining the testator's original intent, the court may consider evidence relevant even though the evidence contradicts an apparent plain meaning of the will
56
Suppose T had a nephew named John Paul Jones, whom he hadn't seen for ten years. After T's death, Paul Frederick Jones comes in and says, "There's been a terrible mistake! T told me on numerous occasions that he intended to, and that he had, left a legacy for me in the will." The stenographer who typed the will says "I goofed. I have the notes T gave me, from which I typed the will, and they show clearly that the legacy was supposed to have been given to Paul Frederick Jones." Is this evidence admissible?
Yes.
There is no ambiguity; its mistake. Majority is no, leave as will stated but in FL . . .
Answer: __________. Upon application of any interested person, a court may reform the terms of a will, even if unambiguous, to conform the terms to the testator's intent if it is proved by clear and convincing evidence that both the accomplishment of the testator's intent and the terms of the will were affected by a mistake of fact or law. In determining the testator's original intent, the court may consider evidence relevant even though the evidence contradicts an apparent plain meaning of the will
57
The Florida Intestacy rules:
VI. INHERITANCE
A. DECEDENT SURVIVED BY SPOUSE [PBQ3]
1. If survived by spouse but no descendants, spouse takes .______________________ .
2. If survived by spouse and one or more descendants all of whom are descendants of the surviving spouse, the spouse takes:
a. _____________________ if there are no other descendants of the surviving spouse.
b. _____________________ if there are other descendants of the surviving spouse.
3. If survived by spouse and descendants at least one of whom is not a descendant of the surviving spouse, spouse takes _________________________________ . Descendants take the rest.
4. SO LONG AS DECEDENT SURVIVED BY SPOUSE OR LINEAL DESCENDANT, ________.
1. entire estate
2. a. entire estate
2. b. 1/2
3. 1/2
4. PARENTS AND COLLATERALS NEVER TAKE.
Note: The share, if any, that does not pass to the spouse above, passes to the decedent’s descendants.
58
The Florida Intestacy rules:
VI. INHERITANCE
B. DECEDENT NOT SURVIVED BY SPOUSE
state the rules . . .
1. All to descendants, if any. [PBQ]
2. If no descendants, to parents or survivor.
3. If no descendants or parents, to siblings and descendants of deceased siblings.
4. If no descendants, parents, siblints or issue of siblingss, one-half to paternal grandparents and their descendants and one-half to maternal grandparents and their descendants.
5. NO INHERITANCE BEYOND GRANDPARENTS OR DESCENDANTS OF GRANDPARENTS. Instead, escheat.
Exception: Before escheat, estate goes to kindred of last deceased spouse of the decedent, as though the last deceased spouse had survived decedent and then died intestate.
Important: You can not disinherit your heir by fiat. Meaning -- if there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will.
59
Important: You can not disinherit your heir by . . .
fiat. Meaning -- if there is a partial intestacy for some reason, your heir takes even though you have expressed a desire that he not share in your estate in your will.
We can disinherit our heirs, but in order to do that, must leave the stuff to someone else.
60
The intestacy statute only applies to _____. This is the estate that _____. It does not include _____ (list).
the probate estate.
could have been controlled by a will had the decedent executed one
61
A solvent heir or will beneficiary can DISCLAIM his or her interest in a decedent’s estate. Disclaimer, which can be _____, results in property passing as though _____. Disclaimer can be made by _____. [PBQ2]
Caution: Under the Florida disclaimer statute, a disclaimer may occur _____. But, to be effective for tax purposes, _____ (For minor beneficiaries, the disclaimer must be made within _____.)
total or partial
disclaimant predeceased decedent
guardian of minor or incompetent, or by personal representative of a deceased person.
at any time prior to acceptance of the interest
the disclaimer must occur within 9 months after decedent's death.
9 months of attaining 21
62
Frank gets Maude pregnant. After the child (Cliff) is born, Frank and Maude go their separate ways. Thereafter, Maude marries Steve; Steve does not adopt Cliff.
a. If Maude dies intestate, can Cliff inherit from Maude?
b. Assume instead that Frank dies intestate. Can Cliff inherit from Frank? [PBQ]
c. Assume, instead, that Steve dies intestate. Can Cliff inherit from Steve?
Change the facts. Shortly after Cliff was born he was placed out for adoption and was adopted by the Andersons.
d. If Mr. or Mrs. Anderson dies intestate, can Cliff inherit from them?
e. If Maude dies intestate, can Cliff inherit from her?
a. Yes. No problem.
| b. No unless . . .
63
. Stepparent adoption: If stepparent adopts (e.g., in #29, Steve adopted Cliff):
a. After death of Frank—
b. After divorce but during Frank's life—
c. Orphan adoption: If both parents die and child is adopted by close family
member—
a. C gets to inherit from Steve; from Maude; AND from other members
of Frank's family
b. C gets from Steve; from Maude; BUT NOT from F or any
other member of Frank's family
c. we don't sever
64
H and W have one child, A. H dies. W marries H-2 and has two children (B and C) by him. Then W and H-2 die; then C dies intestate. C was not survived by spouse or descendants. a. What distribution? [PBQ]
b. What if, instead, A died intestate, survived by B and C as her nearest kin?
a. B is a whole blood sibling; A is a halfblood
Whole bloods get 2x halfblood
A gets 1/3 and B gets 2/3
b. If nearest kin are all half-bloods, they take equal shares.
If A dies intestate, both are halfblood; so they get 1/2 each.
65
Simultaneous Death Act . . . .
(enacted in Florida and most states): When passage of title to property depends on priority of death and there is insufficient evidence that the persons have died otherwise than simultaneously, absent a will provision to the contrary, the property of each passes as though he survived. [PBQ3]
Wills:
Intestacy: Insurance:
As though testator survived; as though beneficiary predeceased.
As though intestate survived and heir predeceased.
As though insured survived; as though beneficiary predeceased.
Joint tenancy with right of survivorship:
One-half as though tenant A survived, one-half as
though tenant B survived. The point: simultaneous death prevents operation of right of survivorship; so one-half passes through each tenant's estate.
66
Rancher and wife, Lulu, involved in auto accident in which Rancher killed instantly. Lulu survived for three days, then died. Rancher died intestate. Is Lulu an heir for purposes of intestate distribution?
Yes b/c the evidence establishes that she survived; 3 days, 3 hours, 3 seconds . . . even an instant, then SD Act
does not apply.
67
Rules on advancement of gifts . . .
a. Common law: Yes. Any lifetime gift to a child or descendants (including adopted) presumed to be an advancement (that is, an advance payment) of his intestate share, to be taken into account in distribution of the intestate's estate.
b. Florida: No gift is an advancement unless (i) declared as such in a contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir.
68
Under FL law, no gift is an advancement unless . . .
i) declared as such in a contemporaneous writing by the decedent, or (ii) acknowledged as such in writing by the heir.
69
Doctrine of advancement applies to _____. A companion doctrine called _________________________ applies to testate estates. A lifetime gift is not a prepayment of any interest under a will unless _____.
intestate estates
satisfaction
(i) the will provides for this treatment, (ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or (iii) the devisee acknowledges in writing that the gift is in satisfaction.
70
A lifetime gift is not a prepayment of any interest under a will unless _____.
(i) the will provides for this treatment, (ii) the testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or (iii) the devisee acknowledges in writing that the gift is in satisfaction.
71
If facts of question involve husband and wife situation you will want to discuss:
A. Homestead, exempt personal property, family allowance:
B. B. Was will written before marriage? ("Pretermitted spouse")
C. Spouses right to collect an elective share
72
Regarding rights of the surviving spouse, what takes precedence over creditors' claims . . .
Homestead, exempt personal property, family allowance.
73
Regarding rights of the surviving spouse, what is homestead?
Homestead: 160 acres of land if rural; one-half acre if within limits of any incorporated city or town. (See Florida Constitutional Law outline.)
74
Regarding rights of the surviving spouse, what is exempt personal property?
Surviving spouse or minor children are entitled to $20,000 worth of tangible personal property (furniture, furnishings, etc.), two automobiles used as family autos (without limit as to value), and all qualified tuition programs UNLESS , in each case, these items were specifically devised to someone else. These items pass to the spouse or children free of creditors' claims, and are not considered part of the intestate or elective shares. [PBQ2]
BUT: If decedent was not survived by spouse or minor children, no exempt personal property set-aside is available, and these items are subject to creditors' claims. [PBQ]
75
Regarding rights of the surviving spouse / exempt personal property? Surviving spouse or minor children are entitled to _____ worth of _____,_____,_____ UNLESS , _____. These items pass to the spouse or children ____ of creditors' claims, and are not considered ______. [PBQ2]
BUT: If decedent was not survived by spouse or minor children, _____, and _____. [PBQ]
Surviving spouse or minor children are entitled to $20,000 worth of tangible personal property (furniture, furnishings, etc.), two automobiles used as family autos (without limit as to value), and all qualified tuition programs UNLESS , in each case, these items were specifically devised to someone else. These items pass to the spouse or children free of creditors' claims, and are not considered part of the intestate or elective shares. [PBQ2]
BUT: If decedent was not survived by spouse or minor children, no exempt personal property set-aside is available, and these items are subject to creditors' claims. [PBQ]
76
Regarding rights of the surviving spouse, what is family allowance?
Up to $18,000 for support of surviving spouse or lineal heirs (ascendants and descendants) whom decedent was obligated to support (minor and incompetent children) or whom decedent was actually supporting (e.g., parents). Purpose is to provide support while assets tied up in probate. [PBQ]
77
Regarding rights of the surviving spouse/family allowance . . . Up to _____for support of surviving spouse or lineal heirs (ascendants and descendants) whom decedent was _____ or _____. Purpose is to _____.
Up to $18,000 for support of surviving spouse or lineal heirs (ascendants and descendants) whom decedent was obligated to support (minor and incompetent children) or whom decedent was actually supporting (e.g., parents). Purpose is to provide support while assets tied up in probate. [PBQ]
78
The homestead, exempt personal property set aside, and family allowance are over and above . . . .
(1) property given to spouse by will, (2) elective share award, or (3) intestate share of surviving spouse (or minor children).
79
Pretermitted refers to _____. Spouse is pretermitted if _____, UNLESS _____.
Effect of marriage following execution of will ("Pretermitted spouse")
Will written before the marriage
1) Pretermitted rights waived in pre- or postnuptial agreement.
2) Spouse is provided for in will. (But provision must have been made in contemplation of marriage. Thus gift "to my friend H" whom T later marries does not count.)
3) Will discloses intent not to provide for the spouse.
80
Elective share is available to _____, but it is not _____.
surviving spouse (widowers as well as widows) of decedents who die a domiciliary of Florida.
automatic; spouse must file notice of election within six months of service of notice of administration on the surviving spouse. (Election can be made on behalf of an incompetent spouse by guardian or holder of "durable" power of attorney ("this power of attorney shall not terminate on the disability or incapacity of the principal") upon a showing that election is in spouse's best interest.)
81
Right to elective share (also right as pretermitted spouse, intestate share, homestead, exempt personal property, family allowance) may be waived _____, ______ consideration, by _____. Fair disclosure of extent of estate required if _____, but not if _____. [PBQ]
before or after marriage
with or without
written contract, agreement or waiver
waiver after marriage
waiver made before marriage
82
Elective share is _____ percent of _____ which includes _____ as well as the following non-probate assets _____.
30
the “elective estate”
the estate subject to administration (including real property situated outside Florida)
83
The elective share amount is reduced by _____ by _____, by _____, as _____, as _____ , or as _____.
the value of any property passing from the decedent to the spouse
will
right of survivorship
beneficiary of securities or bank accounts titled in TOD or POD form
beneficiary a life insurance contract
beneficiary of an elective share trust
84
Elective share trust:
Trust created by the decedent for the spouse’s benefit. Spouse must have the right to income for life. If trustee has power to distribute principal for the spouse’s health, support and maintenance, reduce elective share by an amount equal to 80 percent of the value of the trust. If the trustee has no such power, reduce elective share by 50 percent of the value of the trust.
85
Elective Share Trust: Trust created by the decedent for _____. Spouse must have the right _____. If trustee has power to distribute principal for the spouse’s health, support and maintenance, reduce elective share by an amount equal to _____ percent of the value of the trust. If the trustee has no such power, reduce elective share by _____ percent of the value of the trust.
the spouse’s benefit
to income for life
80
50
86
Tom died on January 5, 2002, leaving a net estate of $200,000. Prior to his death, Tom had created a revocable trust. The property in the trust was worth $1 million at Tom's death. Tom never married until his marriage to Mary about six months before his death. Tom's will, executed in 1997, leaves his $200,000 estate to his revocable trust. The trust provides that all trust property, including the property added to the trust under Tom's will, is to be divided equally between Tom's brother Darryl and his sister Sal. On these facts: [PBQ3]
a. What share of Tom's estate is Mary entitled to as a pretermitted spouse?
b. Should Mary claim an elective share instead?
a. intestate share of the probate estate (in this case, the entire 200k b/c no decedents)
b. Yes, b/c 30% of the elective estate - 30% of 1.2 = 360k spouse cannot have both
87
A pretermitted child is _____ and is entitled to take _____
| UNLESS _____.
born or adopted after the will is executed.
an intestate share (what the child would have taken if no will at all) - our belief
is that failure to provide for child was unintentional.
UNLESS: 1) It appears from will that omission was intentional
2) H had other children at execution and substantially all estate left to parent of pretermitted child.
88
H and W were married in 1993. Later that same year, H executed a will leaving all of his property to W if she survived him, otherwise to M, his mother. In 1999, H and W had a child, A. W died in childbirth. In 2012, H died in an automobile accident. He had never revoked or modified his 1993 will. What are A's rights to share in H's estate? [PBQ]
What if, in the above case, H had executed a codicil after A's birth. In the codicil he named Smith instead of B as personal representative; in all other respects he reaffirmed and ratified the previous will. Do we have a pretermitted child situation?
Kid is protected; gets intestate share. What is that intestate share? If you think about it,
it's the entire estate. M left with nothing.
B, no b/c of the doctrine of republication by codicil. The effect of the codicil is to re-date the will to the date of the
codicil.
89
A person who _____ kills the decedent is not entitled to any benefit from decedent's estate by will, by intestacy (including family allowance, exempt property and homestead), as beneficiary of a revocable trust, life insurance contract or otherwise. Property passes _____. Jointly held property with right of survivorship passes _____.
unlawfully and intentionally
predeceased decedent
half to killer and half as if killer predeceased decedent.
IMPORTANT
NOTE:
1. its an INTENTIONAL KILLING; not negligence; involuntary manslaughter AND
2. aquitle at criminal law is NOT controlling b/c this is by civil standard . . . preponderance of the evidence
90
Test for standing in will contest . . .
Standing: Anyone whose share of the estate would increase if the will contest were to be successful.
91
Test for challenging lack of testamentary capacity and burden of proof . . .
Burden of proof on contestants.
The test:
1) Did T understand the nature of the act he was doing?
2) Did T know the nature and character of his property?
3) Did T know the natural objects of his bounty?
4) Did T understand the disposition he wished to make? (not all the tech details but practical effect)
92
Evidence of T's capacity or lack of it must relate to _____ (timing). The more distant in time from the will's execution a particular fact may be, the less significance it has on the question in issue: Did T, at the time the will was executed, have capacity?
Mere _____ are not inconsistent with testamentary capacity if the testamentary prerequisites (above) were possessed by the testator.
If T had been adjudicated incompetent and a guardian appointed, this is evidence of lack of capacity but _____. 2 Reasons why ____ and _____.
he circumstances at the time the will was executed, or shortly before or shortly thereafter
old age, physical frailty, sickness, failing memory or vacillating judgment
it does not raise a conclusive presumption (i.e., it will not support a directed verdict).
(i) the test for whether a guardian should be appointed is different from the four-point test above; (ii) even if T had a mental problem, the jury could find that T wrote the will during a "lucid" interval.
93
Insane delusion:
A distinctive form of testamentary incapacity: Where T is otherwise sane, but the will (or a gift in the will) is a product of an insane delusion, having no basis in fact or reason, which T adheres to against all reason and evidence, and where the will (or gift in the will) is the product of the insane delusion.
94
An insane delusion is a distinctive form of testamentary incapacity: Where T is otherwise sane, but the will (or a gift in the will) is a product of an insane delusion, _____(meaning), which _____, and _____.
having no basis in fact or reason
where the will (or gift in the will) is the product of the insane delusion
95
How to challenge based on undue influence . . .
Undue influence: Burden of proof is on contestants, who must show:
1) Existence and exertion of the influence AND
2) Effect is to overpower the mind and will of the testator AND
3) The result is a will that would not have been executed but for the influence.
Influence is not undue unless the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.
While evidence of undue influence is usually circumstantial, these alone are not enough: 1) Mere opportunity to exert influence.
2) Mere susceptibility to influence due to illness, age. Such evidence does not (by itself) establish that T's mind was in fact subverted and overpowered.
3) Mere fact of "unnatural disposition" -- that some children take less than others or are excluded entirely. It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of undue influence.
96
While evidence of undue influence is usually circumstantial, these alone are not enough:
1) Mere opportunity to exert influence.
2) Mere susceptibility to influence due to illness, age. Such evidence does not (by itself) establish that T's mind was in fact subverted and overpowered.
3) Mere fact of "unnatural disposition" -- that some children take less than others or are excluded entirely. It is only where all reasonable explanation for the devise is lacking that the trier of facts may take this circumstance as a badge of undue influence.
97
Undue influence may be shown as to _____.
the entire will, or as to one gift in the will.
98
In Florida and many states, a presumption of undue influence arises upon a showing that _____.
_____ may also tend to show undue influence. E.g., _____.
a principal beneficiary under the will who stands in a confidential relationship to the testator (attorney-client, priest-parishioner, doctor-patient) draws or procures the execution of the will
Suspicious circumstances
relative stranger insinuates himself with T when T, because of mental or physical condition or age is susceptible to influence, and T then writes will that disinherits children.
99
Ways of challenging a will . . .
1. Standing
2. Lack of testamentary capacity
3. Undue influence
100
Influence is not undue unless _____.
the free agency of the testator was destroyed and a will produced that expresses the will, not of the testator but of the one exerting the influence.
101
Types of estate administration and def . . .
1. Disposition without administration: No real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills.
2. Summary administration: Estate less exempt property ($20,000 plus autos) is less than $75,000.
3. Full administration: All other estates.
102
Enter the type of administration . . .
1. _____: No real property and all personal property is either exempt from creditors or is needed to pay funeral costs and final medical bills.
2. _____: Estate less exempt property ($20,000 plus autos) is less than $75,000.
3. _____: All other estates.
Disposition without administration
Summary administration
Full administration
103
Julia, who is unmarried and childless, dies with a will leaving all of her estate to her sister. Julia's estate includes a car worth $15,000, a computer worth $4,000, an original painting worth $3,000 and a $60,000 bank account. What type of administration should be used for Julia's estate? [PBQ]
a. _____No administration?
b. _____Summary administration?
c. _____Full administration?
Same facts as 38 except that Julia also owned a $35,000 house and she was survived by a husband, Hank?
d. _____Summary administration?
e. _____Full administration?
a. No. 82k much more
b. Must be less than 75k, but if have no spouse etc. then no exempt property. No.
c. Yes.
d. and e. house is irrelevant; can ignore
Hank gives exempt property - below threshold
so summary is fine
104
Procedural steps in a full administration . . .
1. commencing
2. caveat procedures
3. appointment and duties of PR
a. eligibility
b. priority
c. bond requirement
4. powers of personal rep
5. notice to creditors
6. notice of administration
7. inventory
8. creditor claims-time limits
9. creditor claims-order of payment
105
Procedural steps in a full administration . . . Commencing: A decedent’s estate is administered _____(where). Administration begins when ______.
in the county where the decedent resided at death
| any interested person (beneficiary, heir or creditor) files a petition for administration
106
Procedural steps in a full administration . . .
Caveat procedures: Persons who _____, may file a caveat with the _____. Creditors may file a caveat only _____ (time). Others may file _____ (time). Once filed, no will can be admitted to probate without _____. Additionally, notice must be given of _____. _____ are entitled to formal notice (by registered or certified mail). Others, and _____, need only receive written notice. [PBQ2]
are worried that an estate will be administered or a will admitted to probate without their knowledge
circuit court
after the decedent’s death
after the decedent’s death
notice being served on the caveator
any petition for administration
Persons with a sufficient interest to contest the decedent’s will
creditors who file caveats
107
Procedural steps in a full administration . . .
Appointment and duties of PR: A personal representative (PR) will be appointed to manage the estate during administration. The PR is issued _____ as evidence of his authority to administer the estate. It is the duty of the PR to _____.
a. Who is eligible to be a PR:
b. Priority:
c. Bond requirement:
letters of administration
collect the decedent's assets, pay off any creditors and distribute the balance to those entitled to it.
Florida banks and persons 18 or older who have not been convicted of a felony. If the person is not a resident of Florida, the person must be a relative (or a spouse of a relative) of the decedent or her spouse.
If there is a will, priority goes first to the person nominated in the will, then to the person selected by a majority of the will beneficiaries, then to the beneficiary selected by the court. When there is no will, first priority goes to the surviving spouse, then to the person selected by a majority of the heirs, then to the closest heir.[PBQ]
Unless waived in the will, a PR (other than a bank) must file a bond to secure the faithful performance of her duties.
108
Procedural steps in a full administration . . .
Powers of personal representatives:
a. General rule: A PR has all powers _____ and may act
b. Exceptions: Unless otherwise provided in the will, a court order is necessary to _____.
c. Joint personal representatives: For wills executed before _____, joint personal representatives must act by _____. For wills executed after that date, they may act by . A PR who _____cannot be held liable for the actions of the majority.
necessary to the proper administration of the estate
without court authority in the exercise of those powers.
sell real property or to continue the operation of the decedent's unincorporated business for more than 4 months.
October 1, 1987
unanimous consent
majority rule
objects in writing
109
Procedural steps in a full administration . . . Notice to creditors:
The PR must publish a notice to creditors for two consecutive weeks in a newspaper in the county where the estate is administered. Additionally, the PR must mail actual notice to all reasonably ascertainable creditors.
110
Procedural steps in a full administration . . . Notice of administration:
The PR must serve a copy of the notice of administration on the decedent’s spouse and beneficiaries. A copy must also be served on the trustee of the decedent’s revocable trust (if any) and any person who might be entitled to exempt property.
111
Procedural steps in a full administration . . . Inventory:
Within 60 days of the issuance of his letters of administration, the PR must file a written inventory of the assets of the estate.
112
Procedural steps in a full administration . . . Notice of administration: The PR must serve a copy of _____ on the _____. A copy must also be served on _____ and _____.
the notice of administration
decedent’s spouse and beneficiaries
the trustee of the decedent’s revocable trust (if any)
any person who might be entitled to exempt property
113
Procedural steps in a full administration . . . Inventory: Within __ days of _____, the PR must file _____.
60
the issuance of his letters of administration
a written inventory of the assets of the estate
114
Procedural steps in a full administration . . .
Creditors Claims – Time limits: All creditors must file their claims against the estate within the applicable statute of limitations period as follows:
a. If no notice to creditors is published, creditors must file _____.
b. If notice is published, this period is _____ except that ____ have ___ days from even if _____.
within two years of the decedent's death
shortened to 3 months from the first date of publication
creditors who are entitled to actual notice
30
the date of the actual notice
that extends beyond the normal 3 month period.
115
Creditors Claims – Order of payment: Creditors are paid in the following order of priority:
a. Expenses of administration
b. Funeral expenses up to $6,000
c. Medicaid claims and debts and taxes with preference under federal law
d. Reasonable and necessary medical expenses for last 60 days
e. Family allowance
f. Child support arrearages
g. Post-death expenses of continuing decedent’s business not to exceed assets of the business
h. All other
116
At Randy's death he owed $10,000 to his friend Jim on an unsecured note, and also owed $25,000 to Jim on a note secured by a mortgage. Randy died on January 2, 2012. His will was probated, his wife was appointed PR, and on January 10, 2012, Notice to Creditors in full compliance with the FPC was published. No actual notice was served on Jim. On April 30, 2012, Jim filed a claim with Randy's estate covering his mortgage and personal loan. What happens? [PBQ]
a. Was actual notice required?
b. Assuming no actual notice was required, how about: _____The $10,000 unsecured note:
_____The $25,000 secured note:
April 10 is the magic day.
a. only if reasonably diligent inquiry would have
revealed Jim as creditor
b.1. out of luck; came in too late
b.2. Jim still have his security interest; if its not
paid he can sell the property and have paid against
his claim but loses the ability to go after other assets
in the estate.
117
If the will is self proving, it cannot be attacked for _____, but can for _____.
lack of formality
| capacity, lack of fraud, undue influence etc.
118
Under Charry (1979), what can be used to satisfy the "signed by two Ws" requirement?
W signature on self-proving affidavit.
119
FL rule on partial revocation of will by physical act . . .
Not permitted. All or nothing.
