Bar – FL wills

Intestacy – default statutory scheme
applies when an individual dies without having effectively disposed of all of his property through non-probate instruments or a valid will
Intestacy – per stirpes descent
taker’s share determined by the share her ancestor would have had

strict rule: shares are always divided at the first generational level, even if there are no living takers

Intestacy – surviving spouse
-marriage requirement: must have been legally married at time of decedent’s death; FL does not recognize common-law marriages
-SS and no descendant: entire estate passes to surviving spouse
-SS and descendants who are all descendant of SS: entire estate passes to SS
-SS and descendants who are not descendants of SS: SS receives on-half of estate
-SS with descendants who are not descendants of the decedent: SS takes one-half
Intestacy – children and other heirs
if it does not descend to SS will descend according to following rules:
-first to decedent’s descendants
-if no descendants, then to decedent’s parents or surviving parent
-if no descendants or parents, then to decedent’s siblings and their descendants
-if no descendants, parents, or siblings or their descendants, then one-half passes to paternal kindred and one-half to maternal kindred in following order:
—grandfather and grandmother equally, or to the survivors
—if no grandparents survive, then to grandparents’ descendants, per stirpes
—if no descendants of maternal grandparents survive, then to kindred on paternal side and vice versa
—if no grandparents or descendants survive, then to kindred of last deceased spouse of decedent
-if none above survive, it will escheat to state of FL
Intestacy – adopted children
adopted child is treated same as birth child
-will be a descendant of an adopting parent
-adopted child has no right to intestate succession of property of birth parents, except if the child was adopted by spouse of birth parent or adoption of child by a close relative
-birth parents have no right to intestate succession of property of child
Intestacy – stepchildren or foster children
in general: FL provides for no intestate succession rights for stepchildren or their descendants

virtual adoption
-equitable doctrine that can be applied to allow a person who was to be adopted, but was not legally adopted, to share in an intestate estate
-person seeking to apply must demonstrate by clear and convincing evidence that:
—1) an engagement for adoption exists
—2) there was performance under the agreement by natural parents in actually giving up custody
—3) there was performance by child in living in alleged adoptive parents’ home
—4) there was part performance by alleged adoptive parents in taking child into home and treating child as their child, and
—5) alleged adoptive parents die intestate

Intestacy – non-marital children
inheritance rights from mother: non-marital children are permitted to inherit from and through their mother

inheritance rights from father: non-marital children can inherit from natural father if 1) natural parents participated in marriage ceremony before or after birth of child, 2) paternity of father is established by adjudication, or 3) paternity of father is acknowledged in writing by father
-child born or conceived in wedlock is presumed to be legitimate and husband is rebuttably presumed to be natural father of child; must be reubutted by clear and convincing evidence, usually scientific genetic testing
-an action to establish paternity brought in probate in order to determine intestacy rights can be brought at any time

Intestacy – after-born heirs
inherit as if born during lifetime of intestate and survived him
Intestacy – half-bloods
only applies to inheritance by collateral kindred (persons with common ancestor – brother, cousins, uncles aunts) not descendants
-kindred of the half-blood will inherit one-half the amount as kindred of the whole-blood
-if all kindred are of the half-blood to the intestate, they will not inherit the entire estate
Intestacy – termination of parental rights
if terminated prior to death of child, natural or adoptive parent is barred from inheriting by intestate succession from or through a child
Intestacy – survival requirements
surviving spouse or other heir must survive decedent to inherit or take under the will

Uniform Simultaneous Death Act
-120 hour rule: must have survived decedent by 120 hours
-insufficient evidence of order of death: property of each individual passes as though the other individual predeceased him
-USDA only applies if there is insufficient evidence that persons have died other than simultaneously
-if there is evidence that beneficiary survived decedent for even a short period of time, statute does not apply

Intestacy – advancements
gift made by an intestate during life to relative with intent that it be applied against any share in the intestate’s estate to which the relative may later be entitled
-FL: property given to heir will be treated as advancement only if declared in contemporaneous writing by decedent or acknowledged in writing by heir
-valuation: at time the heir came into possession or enjoyment of property, or at time of death of decedent, whichever occurs first
-hotchpot procedure: if gift is treated as advancement, donee must allow its value to be brought into the hotchpot; advancement is added back into the estate, resulting total estate is divided by number of heirs taking, advancement is deducted from total share of heir to whom it was given
Execution of wills – formalities – valid will requirements
-writing signed by testator
-in joint presence of two attesting witnesses
-testator has present testamentary intent
Execution of wills – formalities – writing signed by testator
entire will must be in writing

signed by testator
-must be signed at end of will
-don’t need complete formal name as long as signature indicates desire to sign
-signature on testator’s behalf permitted by person in testator’s presence and at testator’s direction

Execution of wills – formalities – witnesses
-need two or more
-signed by testator (or by person on testator’s behalf) or acknowledged by testator in joint presence of two witnesses
-witnesses do not need to sign at end of will but must sign in the presence of each other and the testator
-witnesses do not need to read the will nor be aware that the instrument is a will
-FL has no minimum age for person to witness a will; witness is competent if he has the ability to observe affixation of testator’s signature and comprehend nature of the act
-interested witness doctrine is void in FL
Execution of wills – formalities – testamentary intent
-testator must execute will with present testamentary intent, understand he is executing will, and intend that it have testamentary effect
-testator must generally know and approve of contents, but need not understand all provisions
-question of fact determined by examination of will and surrounding circumstances
Execution of wills – formalities – integration
will consists of all pages present at execution and intended to be part of will
Execution of wills – formalities – testamentary capacity
testator must be at least 18 and of sound mind at time of execution
Execution of wills – holographic wills
holographic will = will that has been entirely handwritten by testator and signed by testator
-FL does not recognize, even if validly executed in another state
Execution of wills – executed by non-residents of FL
any will, other than a holographic or oral will, is valid in FL if valid under laws where will was executed
Execution of wills – codicils
supplement to existing will that alters, amends, or modifies
-execution: same formalities as will must be observed
-effect: republishes will as of date codicil executed
-may validate invalid will
Execution of wills – self-proved will
acknowledged by testator and affirmed by witnesses before court official
-effect: removes need for testimony of attesting witnesses at formal probate proceeding
Will substitutes

pour-over wills
-devise of testator’s property to trust created during testator’s life
-trust must be executed prior to or contemporaneously with will

property with right of survivorship

totten trusts

life insurance

deeds: unconditionally delivered to grantee during decedent’s lifetime or delivered to escrow agent during decedent’s lifetime with instructions to turn over to grantee upon decedent’s death

effect of divorce or annulment: any designation made prior to dissolution or court order to decedent’s former spouse is void

Will contracts and joint wills
will contracts: must be in writing and signed by agreeing party in presence of two attesting witnesses
-if agreement is executed by non-resident of FL, it will be valid in FL if valid where executed
-must also satisfy basic K principles

joint wills: execution creates neither a presumption of a K to make a will nor a presumption of a K not to revoke the will

Revocation of a will – any time prior to testator’s death
subsequent instrument: oral revocation of will is not valid
-revocation can be express or implied by terms of subsequent instrument
-inconsistency: later document controls and revokes prior inconsistencies

destruction with intent to revoke
-destruction: burning, canceling, tearing, etc. with purpose to revoke; must be concurrence of physical act and intention to revoke
-rebuttal presumption of revocation: will last seen in testator’s possession cannot be found, but can be overcome by competent and substantial evidence
-FL does not permit partial revocation by physical act
-third party can revoke for testator if at testator’s direction and in testator’s presence

operation of law
-subsequent marriage: will executed by an unmarried person is not revoked by a subsequent marriage; pretiermitted spouse receives SS’s intestate share; SS’s right to pretermitted share may be waived by written agreement signed by the waiving party in presence of two subscribing witensses
-divorce: provision that affects spouse automatically becomes void upon divorce or annulment, unless it provides otherwise;

Revocation of a will – pretermitted child
pretermitted child receives child’s intestate share unless will states that omission was intentional revocation of codicils
Revocation of a will – revival
revocation of a subsequent will does not automatically revive a prior will

republication by codicil
-execution of codicil to a first will previously revoked revives first will
-codicil must expressly refer to first will and be executed with same will formalities

dependent relative revocation: testator’s revocation of will disregarded if based on mistake of law or fact and would not have been made but for that mistake

Revocation of a will – proof of lost or destroyed will
if presumption of revocation has been overcome: FL will allow probate of the will if: 1) specific content of will is proved by testimony of two disinterested witnesses, or 2) correct copy is provided and proved by one disinterested witnesses
Revocation of a will – action to contest revocation
may not be commenced before death of testator
Construction of will – classification system of gifts
-specific: property distinguished with reasonable accuracy from testator’s other property
-general: property to be satisfied from general estate assets
-demonstrative: property to come from particular source
-residuary: property remaining after all specific, general, and demonstrative gifts made
Construction of will – incorporation by reference
documents in existence at time of execution of will: another writing not executed with testamentary formalities may dictate distribution of T’s property if:
-existed at time of execution of will
-is intended to be incorporated, and
-is described in will with sufficient certainty to permit identification

special rule for list disposing of tangible personal property: list need not be in existence at time the will is executed; must be signed by testator and describe the items and devisees with reasonable certainty

Construction of will – acts of independent significance
designation of beneficiary or disposition by reference to some unattested act/event occurring before/after execution of will or testator’s death if act/event has some significance apart from will
Construction of will – lapse
if beneficiary dies before testator, gift to beneficiary lapses and passes to residuary or (if non) via intestacy
-anti-lapse statute: unless a contrary intent appears in will, predeceasing beneficiary’s surviving descendants will take per stirpes in the property the beneficiary would have been entitled had he survived the testator
-residuary lapse: surviving residuary beneficiaries take share of deceased residuary beneficiary in proportion to their interests in remaining part of the residue unless anti-lapse statute applies
-class gift rule: when one member dies, only the surviving class members take, absent a contrary will provision or application of anti-lapse statute
Construction of will – abatement
reduction/elimination of gifts when assets insufficient

gifts abated in following order
-intestate property
-residuary devises
-general devises
-demonstrative and specific devises

Construction of will – ademption
denial of gift to beneficiary because property no longer in testator’s estate

ademption by extinction: applies only to specific bequests
-requires substantial change in nature of subject matter of bequest
-FL: evidence of testator’s intent is admissible if it reflects that testator did not intend disposal of specific devise to change testamentary scheme and extinct property can be traced to existing assets

ademption by satisfaction
-gift satisfied by inter vivos transfer of property after execution of will if testator intended
-no presumption if (one of following must apply): will specifically provides for deduction of gift, contemporaneous writing by testator declares gift should be deducted from devise, recipient acknowledges in writing that gift is in satisfaction of devise

Construction of will – exoneration of liens
lien on specifically devised RP is not exonerated unless will directs such action
Elective share
designed to ensure surviving spouse is not disinherited

amount of share
-spouse’s elective share is 30% of elective share
-elective estate includes more assets than decedent’s probate estate

time and procedure
-must be filed within 6 months of being served within notice of administration, or 2 years after decedent’s death, whichever is earliest

satisfaction of elective share: following are applied (first to last) to satisfy elective share
-interests passing to or for benefit of surviving spouse
-equal apportionment among classes of direct recipients
-property held in trust in which SS has beneficial interest
-recipients of charitable lead interests

waiver of right to election: by written contract, signed by waiving party, in presence of two subscribing witnesses

Exempt personal property set aside
property subject to set-aside: if decedent was domiciled in FL at time of death, SS and children are entitled to certain personal property
-up to 20k worth of household furnishings; two cars; qualified tuition programs; certain state benefits paid to teachers and school administrators
-not applicable to property specifically or demonstratively devised

exclusion of exempt property: exempt property is excluded from value of estate before residuary, intestate, pretermitted, or elective shares are determined

Family allowance
support allowance for maintenance of spouse or dependent lineal heirs domiciled in FL at time of death during administration of estate

who receives payment
-if SS is not living, lineal heirs or persons having their care and custody
-if lineal heirs not living with SS, allowance paid partly to lineal heirs and partly to SS according to needs

Bars to succession – homicide
person who unlawfully and intentionally kills or participates in procuring death of D cannot take under will or through intestacy
-killer is treated as if he predeceased D
-standard of proof: final judgment of conviction of murder in any degree is conclusive proof; in absence of conviction, court determines by greater weight of evidence whether killing was unlawful and intentional
-FL does not bar killer’s issue from taking
Bars to succession – spousal rights procured by fraud, duress or undue influence
benefits lost: SS who procured marriage to decedent by fraud, duress, or undue influence is not entitled to rights/benefits acquired solely by virtue of marriage or status as SS

effect: spouse is treated as if spouse had predeceased decedent

Bars to succession – bigamy
subsequent bigamous marriage estops SS from taking intestate share of first spouse’s estate
Bars to succession – disclaimer
permitted but must be affirmatively done since acceptance presumed
-effect: disclaiming party is treated as if she predeceased decedent
-requirements: must be in writing and identified as a disclaimer; describe interest being disclaimed; signed, witnessed and acknowledged; delivered or filed as described in statute
-federal tax liens: disclaimer cannot be used to defeat valid federal tax
Will contests – standing to contest
only directly interested parties who stand to benefit financially can contest the validity of a will; not testator’s general creditors, spouse, prospective heir, or beneficiary under prior will
Will contests – lack of testamentary capacity
at time of will execution testator did not have ability to know nature of act, nature/extent of property, natural objects of bounty, or effect of disposition
Will contests – insane delusion
belief for which there is no factual or reasonable basis, but to which testator adheres despite all reason and evidence to the contrary
-subject to disproof: no insane delusion unless subject to disproof by demonstrative evidence
-but for causation: delusion was sole cause of testamentary disposition
Will contests – undue influence
mental or physical coercion exerted by third party on testator with intent to influence testator such that he loses control of his own judgment and executes unnatural will

confidential relationship presumption: testator, as a result of his weekend or dependent state, confided, trusted, or relied upon other party
-no confidential relationship between husband and wife
-burden of proof on beneficiary to show by preponderance of evidence no undue influence
-if undue influence, will may be invalidated in whole or in party

Will contests – fraud
beneficiary made misrepresentation when will was executed with intent to deceive testator and influence disposition resulting in a will that would not have been executed but for fraud
Will contests – mistake
-mistake in execution: testator is unaware of instrument he is signing
-omitted provision: court will not reform absent fraud or duress
-mistake in drafting: immaterial if testator knew and approved contents
-mistake in inducement: will not invalid unless fraud or undue influence or mistake negates testamentary intent
Will contests – ambiguities
-plain meaning rule: courts reluctant to disturb plain meaning of will
-extrinsic evidence: can be used to clarify ambiguities
-patent and latent ambiguities: FL does not recognize this distinction
Will contests – action to reform will to correct mistakes
court may reform will, even if terms are unambiguous, to conform the terms to testator’s intent if proved by clear and convincing evidence that testator’s intent and terms of will were affected by mistake of law or fact
Will contests – forfeiture clause
gift to beneficiary void if beneficiary contests the will; unenforceable in FL
Will contests – tortious interference with an expectancy of inheritance
existence of expectancy; intentional interference with expectancy through tortious conduct; causation; damages
Probate and administration
property passes under testator’s will or by intestacy
Probate and administration – procedure
-jurisdiction – FL circuit court
-venue: county in which decedent was domiciled at time of death or in county in which decedent owned property
-notice: given to interested parties
-evidence of death: copy of death certificates; missing for continuous period of five years
-proof of will: oath of attesting witness; oath of personal representative or disinterested person; self-proving will can be admitted without additional proof
Probate and administration – personal representative
principal duties
-inventory, collect and mange decedent’s assets
-receive and pay claims of creditors and tax collectors
-distribute remaining assets

fiduciary duty: owes highest duty of loyalty and care to those represented
-liable to any interested persons for resulting damage or loss

exculpatory clause: unenforceable to extent it relieves personal representative of liability for breach of fiduciary duty in bad faith or with reckless indifference

compensation: entitled to reasonable compensation payable from the estate

Probate and administration – creditor’s claims
period of limitation: time for filing depends on whether creditor’s claim was known or reasonably ascertainable

notice: personal representative must provide notice to creditors

priority of claims: administrative expenses, funeral expenses, tax claims, last medical expenses, family allowance, arrearage from court-ordered child support, debts acquired after death, all other claims

Probate and administration – apportionment of death taxes
-testator can specify source of death taxes
-if testator has not specified, taxes are charged first to residuary estate
-if residuary estate is not sufficient, balance is apportioned pro rata among beneficiaries
Probate and administration – representation of minors and incapacitated persons
guardian of the person, guardian of property or guardian ad litem
Probate and administration – simplified administration
allowed when decedent has been dead for at least two years or value of estate is 75k or less
Probate and administration – closing the estate
if no objection is filed within 30 days of personal representative providing an accounting to court and interested persons, personal representative is discharged and estate is clsoed
Powers of appointment
power to decide to whom property is given
-general power of appointment: no restrictions/conditions on exercise of power
-special power of appointment: limits holder’s exercise of power to specified class of people

-any instrument, unless donor directs otherwise may be used to exercise power
-testamentary power of appointment can only be exercised by valid will; mere residuary clause in will not sufficient to exercise power, but use of phrase “including any power of appointment I may possess” generally effective
-holder can agree to appoint if power is presently exercisable

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