Florida Wills & Estates
Terms in this set (134)
Intestate: Per stripes and strict per stirpes
FL follows strict per stirpes: determines stirpital shares at first generational level, whether or not any living takers at that level
Per stirpes: descendants of deceased person take by representation share that deceased person would have taken had he survived to be heir
Intestate: Spouses (entire v. half)
Entire: decedent survived by descendants, all are also decedents of spouse, and spouse does not have any other descendants; OR decedent leaves no surviving descendants
Half: decedent survived by descendants and either decedent or surviving spouse has descendants who are not descendants of other
*Divorce severs marriage / legal separation does not
Portion of estate not going to spouse distributed in order below:
- descendants, per stirpes
- parents or surviving parent
- brothers and sisters and their descendants per stirpes
- 1/2 to paternal grandparent and 1/2 to maternal grandparent and their descedants, per stripes (both halves to one side if no takers on other )
- kindred of last deceased spouse, as if she had survived decedent and then died
- estate escheats to state
NOTE: parents and collateral kin (brothers, sisters, aunts, uncles) never inherit if intestate decedent survived by children or more remote descendants
Intestate: adopted children
Treated same as natural children.
No inheritance in either direction btw adopted child and natural parents, except where adopting parent marries natural parent or child adopted by close relative.
Any parent barred from inheriting from child if parental rights terminated.
Intestate: stepchildren and foster children
Generally have no inheritance rights unless adopted
Doctrine of adoption by estoppel: legal custody of child gained under unfulfilled agreement to adopt child
Intestate: posthumous children
Conceived BEFORE decedent death but born AFTER inherit intestate as if born in decedent's lifetime
Intestate: non marital children
Kids born out of wedlock heirs of mother but not father unless:
- father married mother,
- adjudicated father before or after father's death
- OR acknowledges paternity in writing
Intestate: half bloods
FL gives 1/2 bloods 1/2 as much as whole, except where all collateral kids are 1/2 bloods
Disinherit heir only by disposing of entire estate. Any undisposed property passes through intestate regardless of express wishes
Intestate/Will Problems: simultaneous death
Florida adopted Uniform Simultaneous Death Act (USDA):
When disposition of property depends on order of death and order can't be established, property of each decedent disposed of as if he survived other. USDA applies unless specific contrary provision in will/instrument
NOT adopted UPC and revised USDA rule requiring person to survive by 120 hours to take property as intestate heir, will or life insurance beneficiary, or surviving joint tenant
Intestate/Will Problems: disclaimers
FL Uniform Disclaimer of Property Interests Act:
B or heir can disclaim interest that results in interest passing through disclaiming died immediately before interest created if:
- writing identified as disclaimer
- describe interest or peer disclaimed
- signed, witnessed, acknowledged AND
NOTE: disclaimers of property must be recorded. For federal gift tax purposes, disclaimer must be made w/in 9 months after decedent's death or B's 21st birthday.
Right to disclaim exists irrespective of any spendthrift provision or similar restriction.
Intestate/Will Problems: disclaimers - surviving joint tenant or tenant by entirety can disclaim
Surviving JT of ToE can disclaim any interest passing to her by RoS. Disclaimer in property held as ToE does not cause disclaimed interest to be homestead property for descent and distribution
Intestate/Will Problems: disclaimers - natural guardian can make "secondary disclaimer" on behalf of minor
Natural guardian of minor child can disclaim interest that (but for disclaimer) would have passed to minor from another disclaimer.
BUT ONLY IF disclaimed interest does not pass to or for benefit of natural guardian as result of disclaimer.
Intestate/Will Problems: disclaimers - disclaimer valid against creditors
Disclaimer valid against creditors of disclaimer bc disclaimer never owned property. Disclaimer cannot be used to defeat federal tax lien.
Intestate/Will Problems: disclaimers - when right to disclaim is barred
1. B gives written WAIVER of right to disclaim
2. B accepts property or any of its benefits
3. B voluntarily assigns, transfers, encumbers interest, or contracts to do so
4. property sold pursuant to judicial process
5. B is insolvent
Intestate/Will Problems: wrongful conduct of heir or beneficiary
Bigamy and Slayer Statute.
Bigamy: intentional bigamous conduct bars bigamous spouse from inheriting the other's estate.
Slayer Statute- person who wrongfully participates in killing cannot receive benefits (will, intestacy, JT, etc). Property passes as if killer predeceased victim. JTs and T by E severed and treated as if tenancies in common--i.e., killer neither forfeits fractions interest in property or received victim's fractional interest.
Evidentiary standard used to determine if person killed victim is "greater weight of the evidence"; conviction is not required
Intestate/Will Problems: advancement of intestate share
Gift made to next of kin with intent gift be applied against inheritance share from donor's estate.
CL: substantial lifetime gift to next of kin PRESUMED an advancement
FL: no gift considered advancement unless INTENTION DECLARED in contemporaneous writing by decedent, or acknowledged in writing as such by heir.
If advancement, value when given added back to estate for calculating shares, then subtracted from recipient's share. Heir need not return amount of advancement in excess of value of her intestate share.
FL, advancement not binding on predeceased heir's successors unless writing or acknowledgment specifically provides otherwise.
Intestate/Will Problems: satisfaction of legacies
Testamentary gift satisfied in whole or part by inter vivos transfer from T to B after will executed, if T intends transfer to have that effect.
FL: doctrine does not apply unless T provides for satisfaction in WILL or contemporaneous WRITING or devisee acknowledges in writing that gift is satisfaction.
Writing not required if T gives specifically described property to B. Both a satisfaction of legacy and ademption.
Will components: integration
Physical attachment, internal coherence of pages, or when pages, read together, set out an orderly dispositional plan raises presumption that they present and intended to be part of will when executed
Proof of integration can be provided by testimony or other EE
Will components: codicil
Modifies executed will and executed with same formalities
Doctrine of republication by codicil: will treated as executed on date of last codicil. Date may be important, like for purposes of pretermitted child statute, to determine if child born after will execution
Will components: incorporation by reference
- In existence at time of execution
- Sufficiently described in will AND
- Will manifests intent to incorporate document
FL: Exception to requirement that document exist at execution allows FL T to refer in will to list specifying distribution of items of tangible personal property, and to write/alter list later. Extrinsic evidence admissible to identify writing whose terms are to be incorporated by reference
Will components: acts of independent significance
Will can dispose of property by reference to acts and events, even though acts/events in future and unattested, if they have significance apart from effect on dispositions made by will
EX: bequest to "each person in my employ at time of my death" -- valid bc T would not make employment decisions just for disposing property
Will components: pour-over gift to inter vivos trust
FL and most states adopted Uniform Testamentary Additions to Trusts Act:
Allows T to make bequest or devise to trustee (pour-over gift) notwithstanding trust can be amended/revoked after will execution
Will components: non probate assets cannot be disposed of by will
Will cannot make gift of nonprobate assets, like:
- life insurance proceeds
- similar death benefits,
- property passing by survivorship,
- and property held in trust
These pass according to terms of particular arrangement.
Will execution: what constitutes will
Instrument executed with certain formalities that is testamentary in character, revocable during maker's lifetime, and operative at T's death.
Codicil: supplemental & modifies will
Because will not operative until T's death, B has expectancy (not property interest)
Will execution: testamentary interest
T must have present intent instrument operate as will. Promises to make will in future and ineffective deeds not given effect as wills.
Parole evidence admissible to show instrument not meant to have any effect (sham will).
CONDITIONAL WILL -it is to be operative only if stated condition satisfied--i.e., "if I do not return from trip." Court might interpret what appears to be condition as just expressing motive for making will, and might give will effect even if condition does not occur
Will execution: testamentary capacity
T must be of sound mind and at least 18 years old
OR emancipated minor at time of will execution
Will execution: formal requirements (generally)
FL: will must be signed at end by T in presence of 2 Ws, who must sign in T's presence and in presence of each other
Will execution: formal requirements, T's signature
Marks by T w/ intent it operate as signature satisfies signature.
T's signature can be made by another person at T's direction and in his presence. If proxy signer signs own name too, he can be counted as attesting W.
Order of signing not critical if signing done as part of single contemporaneous transaction.
FL: must sign will at end. Requirement satisfied if signature physically in immediate juxtaposition to will's dispositive provisions.
Will execution: formal requirements, presence requirement
Minority - "scope of vision"
Majority - "conscious presence" test
FL Supreme Court has not ruled on this, but lower courts appear to follow "scope of vision"
Will execution: formal requirements, witnesses
FL does not require will to be published (identified to W as being will)
CL: W is B was not competent, and will could not be probated unless 2 other competent Ws. Most states now provide that will still valid, but bequest to interested W is void
FL and UPC abolished interest W rule and allow interested Ws to take under will
Will execution: formal requirements, attestation clause
Recites elements of due execution and is prima facie evidence of elements. Useful if W forgets or misremembers facts of execution.
Will execution: formal requirements, self-proving affidavit
Sworn to by T and Ws before notary. Functions like deposition and eliminates need to produce W in court years later. Signatures on affidavit can serve as signatures needed on will itself.
Will execution: other types of wills
1. Holographic (handwritten by T and signed by not properly W) and oral wills - not recognized in FL even if validly executed in another state. ~1/2 of states and UPC recognize holographic wills.
2. Military testamentary instruments: if properly executed, then valid in FL. Instrument must be executed:
- by T eligible for military legal assistance
- in presence of military legal assistance counsel &
- presence of two disinterested attesting Ws
Will execution: foreign wills
Will--other than holographic or oral --executed by nonresident of FL is valid in FL if validly executed under law of place where T was at time of execution
Will execution: attorney liability for negligence
Attorney can be liable to Bs harmed by negligence prep or execution of will even though will B not in privity of K
Will Ks - Joint Wills: joint & mutual wills
Joint will - 2+ persons executed will as single instrument
Mutual wills - separate instruments with reciprocal provisions
Will Ks - Joint Wills: Contractual Wills
T can enter K to make will, to make gift by will or not to revoke will.
Typical will K - parties agree on terms and provide that survivor will not revoke will after other's death. Technically, survivor may revoke and have new will probated, but Bs of "revoked K will" may sue to have constructive trust imposed on estate assets
FL: Ks relating to wills must be in writing and signed by agreeing party in presence of 2 attesting W, and execution of joint will or usual will does not create presumption of K to make will or K not to revoke.
Agreement executed by nonresident is valid in FL if valid under laws of state/country where agreement executed
Revoking wills: generally
Person w/ testamentary capacity can revoke will at any time before death.
Will can be revoked by operation of law, subsequent instrument, or physical act. Even will that T has contractually agreed not to revoke can be revoked, but B can have breach of K action against estate
Revoking wills: revoke by operation of law - marriage after will execution
If person married after will execution and spouse survives, new spouse takes intestate share as "pretermitted spouse." Does not take intestate share when:
- it is waived in valid ante- or postnuptial agreement
- will includes gift to spouse in contemplation of marriage OR
- will discloses an intention not to make provision for spouse
Revoking wills: revoke by operation of law - divorce or annulment
(FL & most states) divorce/annulment after will revokes provisions in favor of former spouse. Will is read as former spouse predeceased T.
FL applies same rule to revocable trusts, life insurance policies, and other interest that transfers to spouse at death.
Governing instrument construed as if former spouse died on date judgment. Designations not revoked if made after dissolution or pursuant to court order. If divorced spouse remarries, provisions in favor of spouse revived.
Revoking wills: revoke by operation of law - pretermitted children
Under pretermitted child statute, if T fails to provide in his will for child born or adopted after will's execution, child entitled to share of estate. In making up that share, general abatement rules apply. Therefore, will revoked to extent necessary to make up child's share.
Revoking wills: revoke by written instrument
All or part revoked or altered by later instrument executed with same formalities as will. If subsequent testamentary instrument does not expressly revoke earlier will, two are read together with later instrument revoking earlier only to extent of inconsistent provisions.
Revoking wills: revoke by physical act - generally
Will or codicil can be revoked by burning tearing, canceling, defacing, obliterating, or destroying I w/ intent to revoke. Intent must be concurrent with the act. Physical act can be performed by another if done at T's direction and in his presence.
NOTE: accidental destruction off ill does not revoke it--even if T later decides he wanted to revoke it-- bc intent to revoke must be present at time of physical act of destruction.
Revoking wills: revoke by physical act - presumptions as to revocation
If will last seen in T's possession or under his control cannot be found after T's death or is found in mutilated condition, then rebuttable presumption arises that T revoked it.
Revoking wills: revoke by physical act - no partial revocation by physical act
Most states (NOT FLORIDA) allow executed will to be partially revoked by physical act, meaning by striking out a claim.
In FL, the stricken clause is given effect as if nothing has been done to it.
Revoking wills: revoke by physical act - effect of revocation on other testamentary instruments
When will had been executed in duplicate, act of revocation done to either copy revokes wil. Revocation os will revoked all codicils to it, but revocation of codicil to a will does not revoke entire will. Note that there is no revival of revoked wills in FL. Once will revoked by language in later will, it cannot be revived unless reelected or republished.
Revoking wills: revoke by physical act - lost or destroyed wills
If a will is lost or destroyed (presumption that T revoked it is overcome), the specific contents of will must be proved by:
- testimony of 2 disinterested Ws OR
- 1 disinterested W and photocopy or carbon copy (but not draft) of will.
Revoking wills: doctrine of dependent relative revocation (DRR)
DRR applies when T revoked will under mistaken belief that another disposition of property would be effective. But for mistaken belief, T would not have revoked will. If other disposition fails, revocation also fails and will remains in force. DRR applies only if comes closer to what T tried (but failed) to do than would an interstate distribution.
Changes in B and property after will execution: lapsed gifts and anti-lapse statute
Gift lapses if B predeceases T. Nearly all states have anti-lapse statutes that operate to save gift if predeceasing B was in a specified degree of relationship to T and left descendants who survived T.
FL anti-lapse statute provides that a predeceasing B surviving descendants will take his share per stripes if:
- B is a grandparent or descendant of a grandparents of T AND
- B is dead when will executed, fails to survive T, or required by will or by operation of law to be treated as having predeceased T.
Statute applies unless contrary provision appears in will.
Changes in B and property after will execution: lapse in residuary gift
If will devised residuary estate to 2+ Bs & one predeceased T (and anti-lapse statute did not apply), CL did not allow remaining residuary Bs to divid deceases B's share among them (unless will specified this). Instead, deceased B share passed by intestacy.
FL & most states replaced this "no residue of residue" rule w/ rule allowing remaining residuary Bs to divide share in proportion to interests in remaining part of residue.
NOTE: if anti-lapse statute's provisions met, that statute takes precedence, and deceased B's descendants take.
Changes in B and property after will execution: lapse of class gifts
If will makes gift to class, only class members who survive T take share of gift, unless will provides otherwise or anti-apse statute requirements are met
Changes in B and property after will execution: lapse - B dead when will executed
If will makes gift to B who was dead at time will executed, gift is void.
FL: rules that apply to lapsed gifts also apply to void gifts.
Changes in B and property after will execution: ademption - specific devises and bequests
Ademption is failure of gift bc it no longer in T's estate at time of death. Applies to SPECIFIC devises and bequests.
SPECIFIC devise or bequest is gift satisfied only by receipt of particular property described. If specifically bequeathed property is not in T's estate at death, bequest is adeemed & B takes nothing. In most states, court will not inquirer into T's intent or reason property no longer in estate.
FL courts will admit evidence of T's intent, particularly in circumstances where absence of property did not result from her own actions.
Changes in B and property after will execution: ademption - does not apply to general or demonstrative legacies
- GENERAL legacy is gift of specific dollar amount.
- DEMONSTRATIVE legacy gives dollar amount but specifies particular asset as source of payment.
Neither of these is adeemed by an absence of case of specific asset in estate; they will be satisfied by selling other assets or making distribution in kind.
Court will attempt to construe gift of securities as general legacy, unless T specifically states (like "my 200 shares of Acme stock")
Changes in B and property after will execution: ademption - special cases where ademption does not apply
Fl does not apply ademption doctrine to certain cases involving either property disposed of by guardian or property that, at time of T's death, is no longer in estate but on which there is balance owed by T.
Changes in B and property after will execution: ademption - stock splits and stock dividends
SPECIFIC devisee of stock entitled to any additional shares of entity owned by T as result of action initiated by entity (merger, reorganization, etc) or which were purchased under a dividend reinvestment plan.
Spouse protection: elective share statute
Gives surviving spouse election to take statutory share of estate instead of taking under decedent's will. In Florida, elective share if 30% of decedent's elective estate. Elective share is in addition to spouse's right to exempt property, family allowances, and homestead.
Spouse protection: property subject to elective share statute
Elective estate= decedent's probate estate + various non probate assets, like:
- decedent's interest in "payable on death" or survivorship accounts or securities, or in property held in joint tenancy with ROS or by the entirety;
- revocable trusts;
- irrevocable transfers to extent decedent retained right to income or principal;
- net case surrender value of decedent's life insurance;
- death benefits from pension; OR
- property transferred w/in 1 year before death or in satisfaction of elective share
Spouse protection: property NOT SUBJECT to elective share statute
Elective share does not include:
- irrevocable transfer before October 1, 1999 or debtor decedent's marriage;
- transfers of decedent's life insurance policy in excess of net cash surrender value or maintained pursuant to court order;
- decedent's 1/2 of community property;
- property in a qualifying specifically needs trust;
- property included in decedent's gross estate for federal estate tax purposes solely bc he possessed general power of appointment;
- or the decedent's homestead
Spouse protection: procedure for making elective share
Election must be filed on or before earlier of date that is:
- 6 months after service of copy of notice of administration on surviving spouse or an attorney-in-fact or guardian of property of surviving spouse; OR
- 2 years after decedent's death.
Person filing election can petition court for extension of time. If petition is filed, time for making election tolled. Election can be withdrawn at any time w/in 8 months after decedent's death and before court order of contribution.
Spouse protection: who can elect an elective share
Right of election can be exercised by surviving spouse, attorney, holder of durable family power of attorney, or if she is incapacitated, by guardian of property.
If surviving spouse dies w/o having made election, right died w/ her.
Right to elective share not lost of dies AFTER filing notice of election but before court determines amount of elective share.
Spouse protection: satisfaction of elective share
All interests that pass or have passed to spouse are first applied in satisfying elective share. Spouse cannot avoid rule by disclaiming or otherwise refusing to accept interests.
Balance of elective share is equitably apportioned among recipients of elective estate property,
- taking first from probate estate or revocable trust,
- then from other property in elective share.
Any remaining balance is satisfied next from surviving spouse's interest in trust, and finally, from recipients of charitable lead interests.
Spouse protection: right of election and other rights can be waived before or after marriage
Can be waived by written agreement before or after marriage:
- right of election,
- right of surviving spouse as intestate successor or pretermitted spouse, and
- rights to homestead, exempt personal property, family allowance, and preference in appointment as person rep of intestate estate
Consideration for the agreement is not required. If agreement is after marriage, each spouse must make fair disclosure of his or her estate; if before marriage, disclosure is not required by the Probate Code.
Spouse protection: effect of elective share on other instruments
Elective share statute does not affect interest in irrevocable K entered into for adequate consideration before Oct 1, 1999. Also any interest in property held in revocable or irrevocable trust is not affected if:
- property was trust asset between October 1, 1999 and decedent's death
- decedent was not married to surviving spouse when property transferred to trust AND
- property was nonmarital asset at decedent's death
Protection of children: pretermitted child statute
Child committed from will born or adopted after will's execution is entitled to take share equal to intestate share had T died instated UNLESS
- he received advancement equal to intestate share
- omission was intentional OR
- T has other children and left most of his estate to other parents of omitted child
**Remember: republication of will by codicil can result in change in child's status as pretermission. Child born before republication is not considered pretermitted and not entitled to protection of statute.
Family protection: homestead
Homestead is 1/2 acre inside municipality or 160 acres outside muni
If T by E or JT w/ ROS = passes by survivorship
If another form = not subject to devise if owner survived by spouse or minor child, but may be devised to spouse in FS absolute if no minor child
Homestead exemption from FORCED SALE by creditors inures to surviving spouse or heirs of owner
Homestead property that is not specifically devises generally passes to residuary as undisposed-of property
Family protection: homestead, improperly devised
If IMPROPERLY devised = descends as intestate property
- unless the decedent survived by spouse and 1+ descendants, then the spouse takes LE w/ vested remainder to decedents surviving descendent's death, per stirpes
- instead of LE, w/in 6 months of decedent's death, spouse can elect to take undivided 1/2 in homestead as TIC w/ decedents surviving decedent's death, per stirpes.
Family protection: homestead - spouse can disclaim or waive homestead rights
If property devised, disclaimed interest in homestead passed through spouse predeceased decedent.
If surviving spouse waives homestead rights and no minor children, property passes according to decedent's will.
Family protection: homestead - interviews transfer of homestead property
Transfer of irrevocable interest in homestead property during owner's lifetime will not be considered devise of interest even if transferor retains separate interest in property (like LE)
Family protection: family allowance
Purpose = provide support during probate
In addition to amount passing by will, intestacy, elective share, or homestead. Amount is up to $18,000 to surviving spouse and lineal heirs who were receiving or owned support by decedent. Spouse does not have to show need. Family allowance must be petitioned for (not automatic).
Family protection: exempt personal property set-aside
Surviving spouse (if none, then decedent's kids provided that at least one is a minor) entitled to up to $20,000 of household furnishing, two of decedent's personal motor vehicles, and all qualified tuition programs, IN ADDITION TO amount otherwise passing to her.
Exempt property excluded from value of estate before residuary, intestate, pretermitted, or elective shares determined.
Not included = property specifically bequeathed or property on which there is perfected security interest.
Exempt property set aside from be petitioned for.
Family protection: when a spouse is disqualified from exercising spousal rights
Spouse who procured marriage by fraud, duress, or undue influence disqualified from following rights UNLESS decedent voluntarily cohabited with spouse w/ full knowledge of wrongful conduct or ratified marriage:
- intestacy or inheritance as pretermitted spouse
- right of election to take statutory share
- right to claim homestead, family allowance, or exempt personal property
- preference in appointment as personal rep
- AND rights or benefits under life insurance policy, will, trust, power of appointment UNLESS specifically named in K or document.
If successfully challenged w/in 4 years after decedent's death, property passes as through disqualified spouse predeceased decedent.
Family protection: no restrictions on testamentary gifts to charity
No restriction on testamentary gifts to charity, regardless of size and regardless of when T will executed.
Will contest challenges whether document offered for probate (or any part of it) is a valid will. Contestant can raise any matter tending to show the willis not valid and should be denied for probate.
Will is void if its execution is procedure by undue influence, fraud, duress, or mistake. If only part of the will was so procured, only part is void.
Will contests: time contest must be filed
Personal rep must promptly publish notice of administration in county where estate administered. Must personally serve copy of notice on decedent's surviving spouse and all Bs and heirs known to personal rep.
Interested person on whom notice served file objections on or before date that is 3 months after date of service of notice of administration. Objections not filed w/in period are barred forever.
Alternatively, petitioner may serve formal notice of petition for administration on interested parties, who then must raise their objections at initial hearing for appointment of personal rep.
Will contests: testamentary capacity
Must exist at time will executed, and need not continue to exist at death. To have capacity:
- T must be at least 18 or emancipated minor and
- Must understand nature and extent of property, persons who are the natural objects of his bounty, and nature of the disposition being made.
Even adjudicated insanity does not necessary mean that T capacity does not exist. Burden of introducing evidence that T lacked mental capacity is on will contestant.
Watch for fact pattern where UNemancipated T executes will before 18, feels satisfied with it, never executed another, and dies at old age. Any will executed under 18 is invalid unless T was emancipated minor.
Will contests: testamentary capacity - insane delusion
Form of incapacity in which T spontaneously conceives as fact something that has no truth except in imagination.
Conception must be:
- persistently adhered to against all evidence and reason w/o evidence of any kind to support it,
- have no foundation in reality,
- and spring from a diseased or morbid condition of the mind.
It differs from mere illogical belief, which can arise (although imperfectly and illogically) from known premise.
Will contests: undue influence
Contestant must establish:
1. influence exerted
2. effect of influence was to overpower mind and free will of T AND
3. product was a will that would have been executed but for influence.
Influence presumed if will makes substantial gift to one in a CONFIDENTIAL RELATIONSHIP w/ T who was ACTIVE IN PROCURING the will.
Keep in mind that mere pleading, begging, nagging, or threatening is not undue influence. Free will of T must be destroyed.
Will contests: undue influence - gifts to lawyers from other disqualified persons
Any part of written instrument making gift to lawyer (or person related to lawyer) void if lawyer prepared or supervised execution of instrument. Rule does not apply if lawyer related to donor. Probation cannot be waived.
Will contests: fraud
Requires that T:
- have been willfully deceived as to character or
- content of instrument or as to extrinsic facts that would induce will or
- particular disposition or with respect to facts material to disposition
If T fraudulently prevented from making will, some courts will impose constructive trust against intestate Bs in favor of those who would have taken had will been made.
Will contests: mistake
By statute the court can reform the will to reflect T's intent if mistake of fact or law affects T's intent or terms of will is proven by clear and convincing evidence
Will contests: mistake in execution of will
EE admissible to show that T did not know that instrument he was signing was will, bc existence of T intent is at issue.
If T mistakenly signs wrong will (like H and W sign each other's), some courts deny relief, but FL court will grant relief if mistake proven by clear and convincing evidence.
Will contests: mistake in inducement
Traditionally, no relief granted if mistake involved reasons T made his will particular way and mistake not fraudulently induced.
Under FL statute, if it is proven that will or terms induced by mistake, will can be reformed.
Will contests: mistake as to contents of will
Traditional rule - EE not admissible to show a provision was committed or incorrect.
Plain meaning rule - evidence was not admissible to contradict plain, unambiguous language of a will.
FL statute - evidence admissible to show a provision omitted or incorrect, even if language of will unambiguous. If mistake proven by C&C evidence, will can be reformed.
LATENT ambiguity arises if will's language is clear on its face but results in a misdescription as applied. PATENT ambiguity exists if uncertainty appears on face of will. EE admissible to cure both patent and latent.
Will contests: mistake as to revocation
Under certain compelling circumstances, constructive trust can be imposed when T mistakenly believes he has effectively revoked will or codicil--e.g., by destroying a photocopy.
Will contests: no-contest clauses
In FL, provision purporting to penalize B from contesting will or instituting other proceedings relating to estate is unenforceable.
Probate process - venue and death presumption
"Probate" is proceeding in which instrument judicially determined to be the deli executed last will of decedent (if no will, proceeding in which heirs judicially determined).
Circuit courts have exclusive jurisdiction. Venue generally decedent's county of residence at time of death. For nonresidents, any county where decedent owned property.
If decedent not FL resident or owner of FL property, venue proper where any debtor resides.
Person presumed death if:
1. she is absent from place of her last known domicile for 5 continuous years and
2. Absence is not satisfactorily explained after diligent search and inquiry.
Probate process - arbitration
Provision in will requiring arbitration of disputes, other than disputes of validity of all or part of will, among Bs and personal reps enforceable and presumed to require binding arbitration.
Probate: Proof of wills
Will can be proved by oath of one of W. If no competent W can be found, personal rep or another person not interested in will can testify that he believes offered writing to be decedent's will. Will is self-proving if W previously signed and sworn to an affidavit as to proper execution.
Lost of destroyed will: exact terms can be established and offered for probate by any interested person. Specific contents off ill must be proved by testimony of 2 disinterested Ws, or if correct copy provided, by one disinterested W.
Probate: personal representative
For testate decedent, order of appointment as personal rep is:
1. person nominated in will
2. person selected by majority in interest of persons entitled to estate and
In absence of unforeseen circumstances that would have changed T's decision, and unless person disqualified by statute, court must issue letters of testamentary to person nominated in will.
For intestate decedent, order of preference is:
1. surviving spouse
2. person selected by majority in interest
3. heir nearest in degree
Probate: personal representative qualifications
Must be 18+
Not be convicted felon
(Unless related to decedent) must be FL resident
-- banks, savings and loans, trust companies authorized to exercise fiduciary powers can serve
Only nonresidents that can serve:
1. decedent's grandparent or descendent thereof
2. decedent's adopted child or adoptive parent
3. decedent's spouse or person related to spouse by lineal consanguinity and
4. spouse of any the foregoing
Personal rep who knows or should know she is no longer qualified to serve must promptly file and serve notice setting forth reasons for inability to serve
Probate: duties of personal rep (generally)
Must secure and preserve estate and keep estate assets separate from other property.
May take possession of protected homestead property if not occupied by heir or devisee.
If personal rep expends funds or incurs obligations in doing so, entitled to lien on property and revenues to secure repayment.
Standard of car is same as for trustee.
Probate: 8 duties of personal rep
1. Duty to file inventory
2. Powers of personal rep
3. Powers of joint personal reps - majority must concur to any act, unless will says otherwise, emergency action required, or one delegated to act for others (dissent in writing to avoid liability)
4. Liability of personal rep
5. Exculpation of personal rep
6. Removal of personal rep
7. Personal rep entitled to rsbl compensation
8. Compensation of attorney for personal rep: attorneys for personal rep entitled to rsbl compensation as set out in statute
Probate: Powers of personal rep
Broad grant of authority, can do with estate property whatever fee simple owner could do.
Exceptions (require court approval)
- operation of decedent's unincorporated business bound 4 months
- selling, mortgaging, leasing real property (unless will grants power)
- transactions involving conflict of interest
Probate: Liability of personal rep
Not individually liable on Ks (except attorney's fees) unless:
- fails to reveal capacity as personal rep OR
- K provides otherwise
Liable for torts if personally at fault and can be liable to persons interested in estate if PR exercises power improperly or in bad faith.
Can prudently rely on professional advice w/o incurring liability
Probate: Exculpation of personal rep
Exculpation clauses void if:
1. relief PR of liability for breach of duty committed in bad faith or w/ reckless indifference OR
2. appear in will as result of PR's abuse of confidential relationship w/ T (unless can show clause fair and adequately communicated to T or attorney)
Probate: Removal of personal rep
- Failure to account, complete w/ court order, give bond
- Waste and maladministration of estate
- Felony conviction
- Conflict of interest
- Disqualification, as when probate of decedent's will, which designated PR, is revoked
Probate: Personal rep entitled to reasonable compensation
PR entitled to commission (percent of value of probate estate) payable out of estate assets. Court can allow additional compensation for extraordinary services.
Will provision filing PR's compensation not binding unless provision made pursuant to K.
If estate values at $100,000+ and 2 Pos, then each entitled to full commission
If more than 2, compensation that 2 would have received is apportioned among them.
If estate less than $100,000 and more than 1 PR, must apportion one full commission amongst themselves.
Probate: creditors' claims
Assets paid to creditors of insolvent estates in following priority:
- Class 1: expenses of administration
- Class 2: funeral expenses up to $6,000
- Class 3: federal debts and taxes, medicaid claims, claims in favor of state for unpaid court costs
- Class 4: expenses of last illness (up to 60 days)
- Class 5: family allowance
- Class 6: arrearage from court-ordered child support
- Class 7: decedent's business debts acquired after death, to extent of business assets
- Class 8: other claims
Probate: Time w/in which creditors claims must be filed
PR must promptly file notice once a week for two consecutive weeks
Must make diligent search to determine names and addresses of decedent's creditors who reasonably ascertainable. Must personally serve copy of notice on then w/in 3 months after first publication.
Probate: Time w/in which creditors claims must be filed - service of notice of administration
Personal rep must promptly serve a copy of notice of administration on following persons who are known to be personal rep:
1. decedent's surviving spouse
3. trustee of decedent's removable trust, if any, if trustee also personal rep of estate
4. all qualified Bs of decedent's revocable trust, if any
5. persons who may be entitled to exempt property
Probate: Time w/in which creditors claims must be filed - failure to publish or serve notice
If personal rep in good faith fails to public or serve required notice, personal rep is not liable; any liabilities on estate
Probate: Time w/in which creditors claims must be filed - filing period
Creditor who was served w/ copy of notice has to file claim w/ court before the later of:
1. three months after date of first publication of notice OR
2. 30 days after date of service of the notice
Unknown and unascertainable creditors must file their claims w/in 3 months after date of first publication of notice. Claims arising after not subject to timely filing requirement.
Failure to file does not affect lien rights or proceedings to establish liability of decedent for which he is protected by casualty insurance. Filing period extended only in cases of fraud, estoppel or insufficient notice. Personal rep can file timely objection to claim, in which case claimant must timely file action on claim. Creditors' claims must be filed w/in 2 years after dependent's death if notice of admin has not been published.
Probate: Time w/in which creditors claims must be filed - caveats
Any interest dperson apprehensive that estate will be administered or will can be admitted to probate w/o knowledge can file caveat w/ court containing statement of caveator's interest in estate.
Noncreditor can file caveat BEFORE OR AFTER death of person for whom estate will be (or is being) administered, while creditor can file only AFTER person's death.
If filed before, caveat empires 2 years after filing. After filing, clerk must promptly notify caveat or of date of issuance of letters of admin and names/addresses of personal reps. After filing by noncredit, court can not admit will to probate or appoint personal rep w/o service of formal notice on caveator.
Probate: creditor's claims - exoneration of liens
In majority of states, B of specifically devised property entitled to have outstanding liens against property paid from residuary estate. FL provides that liens are NOT exonerated UNLESS will specially directs it.
Probate: creditor's claims - abatement of legacies
If estate assets are insufficient to pay all of teeters debts and expenses plus other items such as spouse's elective share, legacies and devises abate in following order, less otherwise provided:
- property passing by intestacy
- residuary devises and bequests
- property not specifically or demonstratively devises--e.g., general legacies-- AND
- specific and demonstrative gifts
Probate: apportionment of death taxes
Unless will says otherwise, taxes attributable to testamentary estate charges against residuary estate. If residuary estate insufficient, balance apportioned pro rate among other Bs. For non probate assets--life insurance and survivorship estates--includible in gross estate for federal estate tax purposes, death taxes equitably apportioned in proportion the value of interest subject to tax bears value of all interests subject to tax. Exempt from apportionment are marital and charitable deductions and homestead exemption.
Probate: representation of minors and incapacitates persons
Where controversy during administration may affect interests of a minor or incapacitates person, person's interest can be represented by appointment of guardian of the property, guardian of the person, or guardian ad litem. In estate admin proceedings, orders binding trustees or living persons in interest can, by virtual representation, serve to bind trust Bs or unborn or unascertained persons.
Probate: special forms of administration - simplified forms of administration
FL provides for 2 forms of sampled admin:
- summary admin
- ancillary admin
No formal admin may be necessary if estate consists only of personal property, the value of which does not exceed sum of exempt property and death expenses, and court gives permission gayer informal application
Probate: special forms of administration - simplified forms of administration: summary administration
Summary admin may apply if the estate value is less than $75,000 or the decedent has been dead for more than 2 years
Probate: special forms of administration - simplified forms of administration: ancillary administration
If nonresident dies leaving assets in FL, ancillary admin necessary. If will and any codicils executed as required in FL, they will be admitted to probate. Unless creditors' claims otherwise barred, ancillary personal rep must publish and serve notice to creditors. Personalty located in FL, although subject to ancillary admin, is controlled by law of the decedent's domicile unless testator provides in his will that the testamentary disposition of the property is governed by Florida law.
Probate: closing administration
When personal rep has completed admin of estate, she must provide accounting to the court and any interested persons. If no objection is filed w/in 30 days, the assets will be distributed, the personal rep discharged, and the estate closed. Once the estate is completely administered, an admin may be reopened only on discovery of additional estate property.
Powers of appointment: terminology of powers
Power of appointment is authority created in person (donee) to designate, witw/in hin limits prescribed by creator of power (donor), persons who will take certain property and manner in which they will take it.
Objects of power are those in whose favor power is exercisable. Takers in default of appointment are persons designated to take property if donee fails to effectively exercise power.
Powers of appointment: terminology of powers -- general vs. special power of appointment
General - one exercisable in favor of donee herself, estate, creditors, or creditors of estate.
Special - one that is exercisable in favor of specified class of persons that does NOT include donee, estate, creditor, or creditor of estate.
Powers of appointment: terminology of powers -- presently exercisable v. testamentary power
Presently exercisable - one exercisable by donee during lifetime.
Testamentary power - exercisable only by donee's will.
Unless expressly limited to donee's lifetime, presently exercisable power also exercisable by donee's will.
Powers of appointment: general powers of appointment -- donee acts as donor's agent
Donee acting as donor's agent in appointing property; therefore, when donee exercises power, appointee takes title directly from donor. Power of appointment personal to donee-- meaning she cannot delegate it or assign it. If donee dies w/o exercising power, it terminated. Note that appointive property not subject to elective share statute.
Powers of appointment: general powers of appointment -- donee's creditors
Donee's creditors can reach property subject to a presently exercisable general power. Creditors cannot reach property subject to a postponed or testamentary general power unless donee is also donor.
Powers of appointment: general powers of appointment -- failure to exercise general power
IF donee fails to exercise general power and no gift in default, property passes to donor's heirs or residuary legatees.
Powers of appointment: special powers of appointment -- exclusive vs. nonexclusive special powers
Special power is EXCLUSIVE if it may be exercised in favor of some objects of power to the exclusive of others--i.e., the donee ma appoint to some objects and not others, or may appoint unequal shares. Special power is NONEXCLUSIVE if it MUST be exercised in favor of ALL appointees. Special powers presumed to be exclusive to be exclusive unless donor expressly provides otherwise.
Powers of appointment: special powers of appointment -- implied gift in default of appointment
If donor of special power fails to exercise it and there is no gift in default of appointment, gift to the objects of the power is implied.
Powers of appointment: special powers of appointment -- donee's creditors
Donee's creditors CANNOT reach property subject to a special power. This is true even if donee of the special power is also the donor, unless transfer was in fraud of donor-donee's creditors.
Powers of appointment: exercise of powers of appointment -- any instrument can exercise power
Unless donor directs otherwise, power of appointment can be exercised by any instrument effective to transfer title to property
Powers of appointment: exercise of powers of appointment -- residuary clause does not by itself exercise testamentary power
General residuary clause in will does not exercise any testamentary power of appointment held by testator unless specific reference made to the power, or there is some other indication of intent to include property subject to power. If donee's will devises "all the rest, residue, and remainder of my property, including any property over which I may have power of appointment," this blanket exercise will be given effect unless donor called for appointment specifically referring to power.
Powers of appointment: exercise of powers of appointment -- exercise by implication
If donee purports to dispose of appointive property as if it were her own, or if disposition cannot be given meaning unless donee treated as having exercised the power, power will be deemed exercised by implication.
Powers of appointment: exercise of powers of appointment -- scope of power
Donee may exercise power by creating trust for an object of power rather than appointing property outright. There is split of authority regarding whether donee of special power can grant object of the power a broader special power than he has. Bc donee can appoint property outright, better view is that he can create broader special power.
Powers of appointment: application of rule against perpetuities
Power of appointment raises following perpetuities issues:
1. Validity of power itself
2. Validity of its exercise AND
3. Validity of the gift in default of appointment
Powers of appointment: application of rule against perpetuities -- presently exercisable general powers
It is certain that a presently exercisable general power will become exercisable or fail w/in the perpetuities period, it is valid. The perpetuities period begins to run on interests created by exercise of power from date of exercise; therefore, interests created must vest or fail w/in 21 years after death of life in being on date of exercise. Gifts in default of a presently exercisable general power are rarely invalid; the perpetuities period begins to run only when power ceases.
Powers of appointment: application of rule against perpetuities -- special and testamentary powers
If special or testamentary power MAY be exercised beyond perpetuities period, which begins to run from creation of power, it is void. Thus, unless expressly limited to perpetuities period, any special or testamentary power lien to unborn person is invalid.
Powers of appointment: application of rule against perpetuities -- special and testamentary powers, relation-back and second look doctrines
Interests created by the exercise of special or testamentary power read back into original instrument creating power, and perpetuities period begins on date power created. Facts & circumstances existing on date of exercise taken into account in determining validity of interests created by exercise.
Powers of appointment: application of rule against perpetuities -- special and testamentary powers, gifts in default of appointment
Gifts in default of appointment subject to Rule Against Perpetuities, but second look doctrine also applies to them.
Powers of appointment: application of rule against perpetuities -- effect of invalid appointment
If donee makes invalid appointment, property passes to taker in default of appointment, if any. If none, property reverts back to donor's estate. If donee of general power manifests intent to take property out of creating instrument and "capture" it for donee's estate, property will pass to donee's estate.
Powers of appointment: Ks to appoint -- testamentary powers, K t appoint invalid
Donee of a testamentary power cannot K to make an appointment. To allow this would defeat intention of the donor by, in effect, transforming a testamentary power into presently exercisable power.
Powers of appointment: Ks to appoint -- presently exercisable powers, L to appoint valid
Donee of presently exercisable power can K to make appointment, but cannot contract to confer benefit on nonobjective of special power.