Florida Wills and Probate Process

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Questions and Answers

How is the part of an estate not passing to the surviving spouse distributed if there are descendants?

Equally to paternal and maternal grandparents

Per stripes to descendants (correct)

Equally among surviving siblings

To parents equally, or to survivors of them

What happens to the estate if there are no surviving descendants or parents?

It is divided between grandparents and their descendants (correct)

It is retained by the decedent's siblings

It goes to the state immediately

It goes entirely to the spouse

What is the status of an adopted child regarding the natural family after adoption?

They retain their original family ties indefinitely

They are considered a stranger to their natural family (correct)

They have partial rights to their natural family's estate

They maintain equal rights with natural siblings

In a scenario where no relatives exist, what is the final outcome for the estate?

It escheats to the state Signup and view all the answers

Which statement about the relationship of an adopted child with their natural parent is correct under certain circumstances?

Marriage of the adopted child's natural parent affects their relationship with the natural family Signup and view all the answers

What is required for a foreign will to be admitted in Florida?

It must be valid under the laws of the foreign state. Signup and view all the answers

Which of the following best describes a self-proving will?

A will that can be admitted to probate without further proof of authenticity. Signup and view all the answers

What action can revoke a will according to the formalities of writing?

The execution of a new will that expresses the intention to revoke. Signup and view all the answers

What does presumptive revocation indicate?

The will is assumed to be revoked if it cannot be found and was in the testator's possession. Signup and view all the answers

Which of the following actions does NOT revoke a will?

Writing a new will that does not express revocation. Signup and view all the answers

What is a necessary condition for a physical act to revoke a will?

The intent to revoke must be concurrent with the physical act. Signup and view all the answers

Which of these statements about the destruction of a will is true?

Destroying a will also destroys all related codicils. Signup and view all the answers

What is a self-proof affidavit in relation to a will?

An optional form that allows a will to be admitted to probate without further proof. Signup and view all the answers

What does fraud in the inducement require to be proven?

The testator was willfully deceived about extrinsic facts. Signup and view all the answers

Which of the following is NOT a requirement for a personal representative in Florida?

Must have a college degree. Signup and view all the answers

What happens if there is a mistake regarding the execution of the will?

The court may reform the will if there's clear evidence. Signup and view all the answers

Who has the first preference in appointment as personal representative if there is no will?

Surviving spouse. Signup and view all the answers

Which of the following is a power of a personal representative?

To act as a fee simple owner of the estate. Signup and view all the answers

Which option is a required duty of a personal representative?

Secure and preserve the estate. Signup and view all the answers

What must be shown to reform a will due to mistake?

Clear and convincing evidence of intent. Signup and view all the answers

In the absence of competent witnesses, who can validate a will?

The nominated personal representative. Signup and view all the answers

What is one requirement for a valid disclaimer?

Delivery of the disclaimer is necessary. Signup and view all the answers

Which of the following would bar a beneficiary from making a disclaimer?

The beneficiary has become insolvent. Signup and view all the answers

What must occur for a gift to an heir to be considered an advancement?

It must be acknowledged by the heir in writing. Signup and view all the answers

What is the share percentage a pretermitted spouse is entitled to if not explicitly provided for in the will?

30% Signup and view all the answers

How is a child who is omitted from a will and was born after the will’s creation classified?

Pretermitted child Signup and view all the answers

Which of the following exceptions allows for a pretermitted child not to receive an intestate share?

The testator intended to omit the child. Signup and view all the answers

What constitutes the elective estate in Florida for a surviving spouse?

Assets related to the decedent's estate including certain accounts. Signup and view all the answers

What is the maximum time frame for making an elective share following a decedent's death in Florida?

Two (2) years after the decedent's death. Signup and view all the answers

What needs to be declared contemporaneously for a gift to qualify as an advancement?

The intention for it to apply against the heir's estate. Signup and view all the answers

What must occur to revive a former will after it has been revoked?

It must be re-executed following will formalities. Signup and view all the answers

How does the doctrine of dependent relative revocation function?

It disregards a revocation based on a mistake, reinstating the prior valid will. Signup and view all the answers

What is one of the grounds for removal of a personal representative (PR)?

Having a felony conviction Signup and view all the answers

Which order is used for abatement when paying debts of an estate?

Property passing by intestacy, residuary property, property not specifically devised. Signup and view all the answers

What happens to a demonstrative devise if the designated item is absent from the estate?

The devise is treated as a general devise. Signup and view all the answers

Which of the following is the correct order of creditors' claims?

Cost and expenses of administration, debts and taxes, family allowance Signup and view all the answers

What is the maximum reasonable funeral expense allowed for creditors' claims?

$6,000 Signup and view all the answers

What occurs if a beneficiary predeceases the testator?

The gift lapses unless stated otherwise in the will. Signup and view all the answers

What is the primary difference between a general devise and a specific devise?

A specific devise involves identified property; a general devise is a gift of a specific dollar amount. Signup and view all the answers

Under what condition can a personal representative sell land or houses?

Unless granted permission in a will Signup and view all the answers

What should a personal representative do to notify creditors?

Publish a notice in a local newspaper for two consecutive weeks Signup and view all the answers

How does ademption apply in a specific devise?

It applies, meaning the beneficiary receives nothing if the item is absent. Signup and view all the answers

Which situation does NOT qualify for Summary Administration?

The estate's value exceeds $75,000 Signup and view all the answers

What triggers the revival of a will that had previously revoked another will?

The re-execution of the former will. Signup and view all the answers

What is one requirement for a personal representative regarding final accounting?

It must be served on interested parties after wrapping up the estate Signup and view all the answers

What happens if no objection to the accounting is filed within 30 days?

Assets will be distributed and PR discharged Signup and view all the answers

Which of the following scenarios could make a personal representative liable for torts?

Acting in bad faith or being personally at fault Signup and view all the answers

What must creditors do to file claims against an estate?

File claims within 3 months of publication of notice Signup and view all the answers

Study Notes

Florida Wills Outline

Florida wills follow a framework for determining will validity, inheritance, potential challenges, and probate procedures.
A will's validity is determined by whether it was lawfully created.
Will inheritances are determined by the will's provisions and Florida statutes, if no valid will exists.
Challenges to a will can be made based on specific legal grounds.
Probate procedures, which involve court oversight, are required for the transfer of an estate.

Terms

Lineal descendant: A direct blood relative of a decedent (child or grandchild).
Collateral descendant: A blood relative who is not a direct descendant (brother, sister, aunt, or uncle).
Per Stripes System: In Florida, the estate is divided equally amongst the surviving members of the generation closest to the decedent. If a deceased member of the generation has descendants, their portion of the estate is distributed to them per stripes.

Intestate Succession

Three situations: The decedent dies without a will, revoked a will, or a will is deemed invalid.
Surviving Spouse: If a surviving spouse exists, they may inherit the entire estate, or half of the estate, depending on whether there are descendants who are also descendants of the spouse.
No Surviving Spouse: If no spouse exists, the estate is distributed to surviving descendants per stripes system. Failing that, the estate goes to the parents equally (or surviving parent). If no parents, then to siblings equally. Failing that, to grandparents and their descendants. Failing that, to the kindred of the last deceased spouse. Failing all that, the estate is escheated (given to the state).

How Property is Distributed by Florida Statute

Step 1: Surviving Spouse: If there is a surviving spouse, they will inherit the whole estate under certain conditions.
Other conditions: If descendants exist but they are all descendants of the surviving spouse, the spouse will inherit the entire estate.
Spouse and Descendants: If the surviving spouse has other descendants (children from a previous marriage), they will receive only half of the estate, and descendants from other marriages inherit the remaining portion of the estate.
Exception: If the surviving spouse committed offenses like killing the spouse, signing a prenup, or not accepting their portion, inheritance would be modified.

Special Cases

Adopted persons: Adopted children are considered descendants of their adoptive parents, the same as natural children.
Exceptions can be applicable where a situation may exist regarding natural parentage relationships.

Wills - Formalities

Requirements for validity: Competency (at least 18 years old or emancipated minor), present intent that the document is a will, in writing, signed in the presence of two witnesses.
Two witnesses' signatures must be present at the will signing. Attesting witnesses must be present in the presence of each other and the testator's signature, signing the will, and acknowledging that they have signed.

Wills - Holographic Wills

Entirely handwritten, with no witnesses necessary.
Typing still counts as not handwritten.

Self-Proving Affidavits

Wills may be self-proving, and these affidavits help authenticate the will's validity. They can be optional.

Wills - Revocation

Revocation of a will occurs when a testator creates a new will or document that expressly revokes a prior one or if there is an inconsistency which revokes a portion of a previous will.
Physical act revocation occurs when a will is intentionally damaged (burned, torn, etc.) or marked. The testator must intend for that to revoke the document.
Revocation by Operation of Law (Divorce or Annulment): A divorce or annulment of a former spouse revokes provisions for said spouse.

Changes After Will Execution

Rules regarding abatement or distributions of funds from a will where the estate is smaller than the promised amounts to the beneficiaries.
Demonstrative devise: Beneficiaries receive a specific item. If the item isn't in the estate, the provisions change to a general devise;
Specific Devise, and if the specific item isn't present in the estate.
Exceptions and rules regarding the order of the distributions (abatement).

Lapse and Anti-Lapse

If a beneficiary predeceases the testator, the gift lapses.
The anti-lapse statute allows for the beneficiary's surviving descendants to inherit the lapsed gift. Requirements must be met.

Simultaneous Death

Uniform Simultaneous Death Act applies; If the order of death cannot be determined, the beneficiaries are treated as if they died before the testator.

Disclaimers

Beneficiaries have the right to disclaim (reject) their inheritance; they treat it as if they died before the testator.

Lifetime Gifts and Advancements

Gifts to heirs during life, with intent that they reduce the inheritance, must be acknowledged in writing. Otherwise, gifts may be considered advancements; and are subtracted from their ultimate inheritance.

Restrictions on Power of Testation

Pretermitted Spouse: A spouse not mentioned in the will, typically gets a portion of the estate of a percentage.
Pretermitted Child: A child not mentioned in the will gets a portion of the estate, unless the omission was intentional or the testator has other children.

A surviving spouse can choose to take a statutory share (30% of the estate) in place of (or in addition to) the will's provisions.
Determining the components that make up the portion of the estate that is considered when computing the elective share.

Will Contests

Challenges to the validity of a will can occur on several grounds. These include issues like will validity. No contest clauses are unenforceable in Florida.

Burden of Proof

The proponent (person supporting the will) must prove the will's validity.
If valid, the burden shifts to those challenging it.

Time for Filing

Interested parties have a time limit to object to a will's provisions if they are challenged (typically 3 months).

Types of Challenges

Challenges include issues of capacity (sound mind), undue influence, fraud, or mistake.

Probate Process - Proving the Will

Documents must be validly executed or have alternative ways to be proven in the Florida court.

Personal Representatives

Qualifications and appointment of personal representatives to administer the will or the estate of a deceased person with no will.

Duties and Powers of the Personal Representative

Duties and powers of the personal representatives, including actions required to properly administer the estate.

Liability of the Personal Representative

Liability for breach of contract or torts in the estate's administration.

Grounds for Removal of Personal Representative

Grounds for removing a personal representative for matters such as incapacity and failure to comply with court orders.

Creditors' Claims

The order of priorities associated with creditor claims and payments.

Cost and Expenses of Administration

The allowable costs associated with probate administration.

Notice and Filing

The procedure for providing and receiving formal notice of probate to creditors and beneficiaries.

Special Forms of Administration

Different formats (summary or ancillary) depending on the value, length of time deceased, and location of the deceased/estate.

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Description

Explore the intricacies of Florida wills, including their validity, inheritance laws, and the probate process. This quiz covers key terms like lineal and collateral descendants, as well as the Per Stripes system of asset distribution. Test your knowledge on how estates are managed under Florida law.