Terms in this set (77)
What does the pretermitted child statute do?
If a testator fails to provide in his will for child born after the will is executed, that child can receive what he would have received if the testator had died intestate, unless the omission was intentional, or the estate was left to the child's other parent.
What happens when specifically bequeathed property is not in the testator's estate at death?
The bequest is adeemed.
What does ademption apply to?
Specific devises and bequests.
What is a demonstrative legacy?
A gift of a general amount that identifies a particular asset as the primary source of payment.
1) When is evidence that a will provision is the result of a mistake of fact or law admissible?
2) What is the effect of such evidence?
1) Such evidence is always admissible.
2) If proven, such evidence will result in a reformation of the will.
When is extrinsic evidence admissible?
To show that a provision was mistakenly omitted from the will, or that a provision contained in the will is not what the testator intended.
When can a will be revoked by physical act by another person?
When such revocation is:
1) At the testator's direction; and
2) In the testator's presence.
When does Florida permit probate of a lost or destroyed will?
The specific content of the will must be proved by:
1) The testimony of two disinterested witnesses; or
2) The testimony of one disinterested witness, if a correct copy is provided.
Where must probate proceedings be commenced?
In the county where the decedent was a resident at the time of his death.
When must an interested person on whom notice is served file any objection to a will's validity/venue/jurisdiction?
Within 3 months of date of service of the notice of administration.
What is required to incorporate a document by reference?
1) The document must be in existence at the time the will is executed;
2) The language of the will must sufficiently describe the writing to permit its identification; and
3) The will must manifest an intent to incorporate the document.
That does the Florida Statute of Wills require?
1) Testator must be 18 or over;
2) Will must be in writing;
3) T must sign will;
4) At the end of the will;
5) In the presence of two witnesses (OR, testator must acknowledge previous signature in their presence);
6) Who sign in the testator's presence;
7) And in the presence of each other.
What is required for revocation of a will by physical act?
1) Intent to revoke;
2) Some physical act.
What must an act do to be sufficient to revoke a will?
1) It must be "burned, torn, canceled, obliterated, or destroyed;"
2) If physical act is writing, the writing must cross some language of the will.
What are the two presumptions regarding wills with respect to revocation by act?
1) Will in T's possession from time of execution until death found in a mutilated condition is presumed to be an intended revocation by act by T.
2) Will last seen in T's possession not found after T's death is presumed to have been destroyed with intent to revoke.
When can a testator's will be revoked by act by another person?
When the revocation is:
1) At the testator's direction; and
2) In the testator's presence.
How is a destroyed will proven?
1) Due execution must be proved by testimony of attesting witnesses;
2) Contents must be "clearly and distinctly proved by the testimony of at least two disinterested persons;"
3) Note: a correct copy (carbon or Xerox copy) counts as the testimony of one disinterested person.
What is the effect of divorce on a will?
It revokes all provisions in favor of the ex-spouse.
What does Dependent Relative Relocation allow us to do?
Disregard a revocation which is based on a mistake of law or fact if the court is satisfied that, but for the mistake, T never would have made the revocation.
What situation is the exception in Florida to the requirements for incorporating an extrinsic document by reference?
A will may refer to a written statement that disposes of tangible property (not money or property used in trade or business) that is not specifically disposed of by the will.
1) List must be signed by testator;
2) List must describe the property and devisees with reasonable certainty.
What is the effect of a beneficiary named in the will or revocable trust dying before the testator?
Generally, the gift lapses (i.e., fails) and falls to the residue.
When does the Florida anti-lapse statute apply?
When the predeceasing beneficiary is:
1) T's grandparent or a descendant thereof;
2) Who leaves issue.
What happens when there is a gift by will to a class, and some class member predeceases the testator?
(assume that the anti-lapse statute does not apply)
The surviving class members take.
In what order are the various types of bequest used to pay costs/creditor?
1) Intestate property;
2) Residuary bequest;
3) General legacy;
4) Demonstrative legacy;
5) Specific devise or bequest.
When is a specific devisee of encumbered property entitled to have the encumberance paid out of the residuary estate?
When the will shows such intent.
When can a court reform the terms of a will?
Upon application of any interested person, 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.
What is the order for who takes intestate property of a decedent not survived by a spouse?
1) All descendants, if any;
2) To parents;
3) To siblings and descendants of deceased siblings;
4) 1/2 to paternal grandparents and descendants, 1/2 to maternal grandparents and descendants;
5) Kindred of last deceased spouse of the decedent (as if last deceased spouse survived, then died intestate);
What is the effect of disclaiming an interest in a decedent's estate?
Property passes as though disclaimant predeceased decedent.
When may a disclaimer occur?
Any time prior to acceptance of the interest.
When must a disclaimer occur to be effective for tax purposes?
Within 9 months after decedent's death (or, for minor beneficiaries, within 9 months of turning 21).
What does the Uniform Simultaneous Death Act provide?
That when passage of property depends on priority of death, and there is insufficient evidence that the persons died otherwise than simultaneously, absent a provision to the contrary, the property of each passes as though he survived.
When is a gift presumed to be an advancement on the recipient's intestate share?
It isn't, unless:
1) Declared as such in a contemporaneous writing by the decedent; or
2) Acknowledged as such in writing by the heir.
When is a gift presumed to be an advancement on the recipient's share under a will?
It isn't, unless:
1) The will provides for this treatment,
2) The testator declares in contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise, or
3) The devisee acknowledges in writing that the gift is in satisfaction.
In a husband-and-wife situation, what items take precedence over a creditor's claim?
2) Exempt personal property,
3) Family allowance.
What property counts as homestead property?
1) 160 acres of rural land, or
2) 1/2 acre of land within a municipality, that is
3) owner solely by the decedent.
What is included in personal exempt property?
Unless specifically devised to someone else, spouse and children receive free of creditor's claims:
1) $20,000 of tangible personal property;
2) 2 automobiles used as family autos (no value restriction);
3) All qualified tuition programs.
What is included in the family allowance?
Up to $18,000 for support of surviving spouse or heirs while assets are tied up in probate.
When is a spouse not pretermitted?
1) When rights are waived in a pre- or postnuptial agreement.
2) When the Spouse is provided for in the will (but provision must have been made in contemplation of marriage).
3) When the will discloses an intent not to provide for the spouse.
What is the effect of marriage following the execution of the will?
The spouse is "pretermitted" -- that is, entitled to an intestate share.
When is a child not pretermitted?
1) It appears from the will that the omission was intentional.
2) H had other children when he executed the will and he left substantially all the estate to the parent of the pretermitted child.
Who has standing to contest a will?
Anyone whose share of the estate would increase if the will contest were to be successful.
What is the test for lack of testamentary capacity?
If the answer is "no" to any of the following, there was incapacity:
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?
What is the test for undue influence on the testator?
Contestants must show:
1) Existence and exertion of the influence;
2) Effect is to overpower the mind and will of the testator;
3) The result is a will that would not have been executed but for the influence.
What are the types of administration, and when do they occur?
1) Disposition without administration: no real property and all personal property is either exempt from creditors or needed to pay funeral costs and final medical bills.
2) Summary administration: estate less exempt property is less than $75,000.
3) Full administration: all other estates.
Who is eligible to be a personal representative?
Banks, and residents of Florida over 18 with no felony convictions.
What is the priority for appointment of personal representative under the Florida Probate Code?
If there is a will:
1) Person nominated in will;
2) Person selected by majority of beneficiaries;
3) Beneficiary selected by the court.
If there is no will:
1) Surviving spouse;
2) Person selected by a majority of the heirs;
3) The closest heir.
For what actions by a personal representative are court orders necessary?
Unless otherwise provided in the will, a court order is necessary to:
1) Sell real property; or
2) To continue the unincorporated business of the decedent for more than 4 months.
How do joint personal representatives act for wills executed before October 1, 1987? After?
1) By unanimous consent;
2) By majority rule.
What notice to creditors must the personal representative give?
1) Publish a notice to creditors for two consecutive weeks in the county where the estate is administered;
2) Mail actual notice to all reasonably ascertainable creditors.
What is the order of payment for creditors?
1) Attorneys for expenses of administration;
2) Funeral expenses up to $6,000;
3) Medicaid claims and debts and taxes with preference under federal law;
4) Reasonable and necessary medical expenses for last 60 days;
5) Family allowance;
6) Child support arrearages;
7) Post-death expenses of continuing decedent's business not to exceed assets of the business;
8) All other.
When a creditor is served with a copy of administration, when must he file his claims with the court?
Before the later of:
1) Three months after the date of the first publication of the notice of administration, or
2) 30 days after the date of service of the notice.
When must a creditor file his claim with the court if notice of administration has not been published?
Within 2 years after the decedent's death.
When must a spouse's election of elective estate be filed?
On or before the date that is the earlier of:
1) Six months after the first publication of the notice of administration; or
2) Two years after decedent's death.
What is a self-proving will?
A will that can be probated without the witnesses being produced to the court.
How is a self-proving will made?
Affidavit signed by testator and two witnesses in front of notary public reciting that the testator declared to the witnesses that the instrument was his will, and that the testator and the
witnesses all signed in the presence of each other, present at the same time.
When can a nonresident be a personal representative?
1) Grandparent or descendant of grandparent;
2) Adopted child or parent;
3) Spouse or people related to spouse;
4) Spouse to any of the above.
When is our standard of proof in letting extrinsic evidence to show a mistake for reformation of a will?
Clear and convincing evidence.
Generally, when must an action to establish paternity must be commenced?
Within four years from the date the child reaches the age of majority. However, this limitation does not apply to paternity actions brought in probate to determine heirship.
When can a disclaimer be barred?
When the beneficiary is insolvent.
When is there a presumption of undue influence on a testator?
If a person:
1) Occupies a confidential relationship with the testator;
2) Is active in procuring the will; AND
3) Is a substantial beneficiary under the will.
What must family do to get family allowance?
Petition for it, and it is ordered after notice and a hearing.
Exemption personal property ($20k in property, cars, college funds) is exempt from what claims against the estate?
All except perfected security interests.
When must petition for an exempt property set-aside be made?
Within four months of service of notice of administration, or within 40 days after termination of any litigation involving the will, or else the right to exempt property is deemed waived.
How can a spouse waive the elective share?
In a pre- or postnuptial agreement signed by spouse in presence of two subscribing witnesses; OR
A complete property settlement made after or in contemplation of separation.
What interests do wife/descendants take in homestead?
1) FSD to spouse if devised to spouse, and no minor children;
2) If improper devise, life estate to spouse, remainder to lineal descendants.
So, this is a general bullshit question, but what are like the three big grounds for setting aside a bequest in a will?
1) Testator lacked capacity;
2) Bequest product of an insane delusion;
3) Gift obtained through exercise of undue influence.
How is a presumption of undue influence rebutted?
Party must come forward with a reasonable explanation of his active role in the will's preparation and execution.
What requirements for a valid disclaimer?
1) Writing identified as a disclaimer;
2) Describe the interest/power being disclaimed;
3) Be signed, witnessed, and acknowledged;
4) Be delivered.
What is the effect of adoption of a child by the spouse of a natural parent who married natural parent after death of the other natural parent?
No effect on inheritance rights between child and natural parent or his family.
Can a will revoke a Totten trust?
Yes, if it specifically mentions it (not just "all bank accounts" in general).
What is the effect of the property from which demonstrative legacy is to be satisfied no longer being in the estate?
The gift is treated as a general legacy.
How to calculate share of estate after advancement to beneficiary?
1) Take value of estate.
2) Add value of the advance.
3) Divide it up.
4) Subtract value of gift from divided up number.
When is a contractual will upheld?
When it is in writing and signed by the agreeing party in the presence of two witnesses.
What happens if a contractual will is revoked by a second will?
Second will probated, and constructive trust imposed for the beneficiaries of the first will.
To what property does an elective share apply?
Real and personal property of the decedent, wherever located.
Is an advancement of estate binding on a predeceased heir's successors?
No, unless writing/acknowledgment of advance specifically provides otherwise.
Effect of revocation of a will on a codicil to that will
Codicil is revoked as well