Florida Wills and Probate Process

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.

Elective Share

• 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.

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.