Florida Wills Outline PDF

**[Florida Wills Outline]** **[Framework:]** 1. Is there a valid will? 2. Who will inherit the property? 3. Whether the will can be challenged successfully? 4. Probate Process **Terms:** - Lineal descendant---in direct line with a decedent (child or grandchild) - Collateral desce...

**[Florida Wills Outline]** **[Framework:]** 1. Is there a valid will? 2. Who will inherit the property? 3. Whether the will can be challenged successfully? 4. Probate Process **Terms:** - Lineal descendant---in direct line with a decedent (child or grandchild) - Collateral descendant---in line with a brother, sister, aunt, or uncle of the decedent - Per Stripes System---Florida follows a pure per stirpes system for descent of intestate estate. The intestate estate is divided into as many equal shares as there are (1) surviving member in the generation nearest to the decedent; and (2) deceased members in the same generation who left surviving descendants. **Intestate Succession ⁉️⁉️⁉️** - *[Three (3) situations; the decedent either died:]* - Without having executed a will - Having revoked a will, or - Having executed a will that was later held to be invalid - A person may also die partially intestate - ***[How is property distributed by Florida Statute?]*** - Step 1: Does the decent have a surviving spouse. - Surviving spouse takes [entire estate] if: - There are no surviving descendants or - There are surviving descendants, but they are all also descendants of the surviving spouse and spouse does not have any other descendants (ex. the children are all the children in common) - Exceptions: - Kill the spouse, sign a pre-nup, do not accept the portion - Surviving spouse take [half of the estate] if: - There are surviving descendants, and some are not descendants of surviving spouse (ex. someone had a child from previous marriage) OR; - Spouse has descendants who are no descendants of the decedent - Part of the estate not passing to surviving spouse is distributed as follows: - Descendants, per stripes - If none, then to parents equally, or survivors of them - If none, then to brothers and sisters and their descendants per stripes - If none, then estate is divided in half and distributed: - ½ to paternal grandparents and descendants per stripes - ½ to maternal grandparents and descendants per stripes - If none, then to kindred of last deceased spouse of decedent as if the spouse had survived and then died intestate - If none of the forgoing the estate goes to the state (escheat) - ***[Special Cases]*** - *[Adopted persons]*---an adopted person is considered a descendant of the parents who adopted them (i.e. same as a natural child) - No longer a part of their natural family - Exception: if the adopting parent marries natural parent, this will not affect the relationship of the adopted child with a natural parent - Exception: adoption of a child by a natural parent's spouse who married the natural parent after death of the other natural parent has no effect on the relationship between the child and the family of the deceased natural parent - Ex. father dies before adoption - Exception: adoption by a close relative upon the death of the natural parents has no effect on relationship between child and the deceased natural parents - *[Termination of parental rights]*---any parent, natural or adoptive, is barred from inhering from child if parental rights were terminated - *[Person Born out of Wedlock]*---child is a descendant of the mother and is natural kindred of all members of the mother's family, but not the father's [unless]: - Parents participated in a marriage ceremony, before or after birth of child, even if marriage is void - Paternity test done to prove that's the father - Father acknowledges paternity in writing - *[Afterborn Heirs]*---heirs conceived before decedent's death, but born after decedent's death, inherit intestate property as if they had been born during decedent's life - *[Half Blood Heirs]*---half-brothers or half-sisters, [take half as much as whole bloods ] - Exception: when all collateral heirs are half blood, then they all take a whole share - Half-blood relationships occur only with brothers or sisters, not with descendants or ancestors **[Wills]** - **Formalities** - *[Capacity ]* - Of sound mind, and - 18 years or older, or an emancipated minor - Testator must have *[present intent]* that the instrument operates as his will - *[Execution]*---all wills must be in writing, signed, in the presence of [two witnesses ] - Signature: testator must sign at the end of the will - May be signed by another person in testator's presence and at testator's direction - At the end means at the end of time - Witnesses---2 or more must attest that: - Testator signed the will or - Testator acknowledged that he had previously signed it, or he directed another person to sign it - Witnesses signature---attesting witnesses must sign the will in the [presence] of testator and in the presence of each other - Presence = within the scope of vison - Witness does NOT have to know what they are signing - *[Holographic Wills]*---will entirely in the testator's handwriting and has **\[no attesting witnesses\]** (i.e. typing still counts as his own writing) - Holographic wills aren't recognized in Florida, even if they were validly executed in another state - *[Foreign Will]*---a will may be admitted in Florida if it was validly executed under the laws of the foreign state *if at the time the person was a non-resident of the state of Florida* - *[Self-Proof Affidavit]* (optional)---a self-proving will is a will that can be admitted to probate without further proof of its authenticity (i.e. going before a notary) - Without self-proof, a witness must testify in probate to say they signed the will - A court may hold a will valid with only a self-proof affidavit on the same sheet of the will being signed - **Revocation** - *[Can be revoked by the following:]* - *[Writing ]* - A new will, codicil, or other instrument executed with formalities can revoke a prior will [if it expressly states that intention] - Partial revocation---a new will or codicil that is inconsistent with the original will, even if it doesn't expressly revoke original will, can revoke [*inconsistent provision* ] - This revocation ONLY extends as far as the inconsistency - *[Physical Act]* - Burning, tearing, defacing, "Void" in huge letter - Intent MUST be concurrent with the act - The physical act can be done by another **[IF]** it is done at their [direction] and in their ["presence]" - **Presumptive revocation**---a rebuttable presumption of revocation arises if the will was last seen in testator's possession and cannot be found, or is in a mutilated condition after his death - ***To overcome presumption***, the contents of the will must be proved by testimony of two (2) disinterested witnesses or by one (1) disinterested witness and a photocopy of the will - Disinterested witness: not receiving any contents from the will - *[Destruction of will also destroys codicils]* - Exception: revoking a codicil [DOES NOT] revoke will. - *[By operation of law]* - Divorce or annulment of former spouse - *[Revival ]* - Revoking a will that revoked a former will does not automatically revive the former will - Once a will is revoked, it must be re-executed following will formalities - Revoking a codicil reinstates the will that was changed by the codicil - **Doctrine of Dependent Relative Revocation**---allows a court to disregard a testator revocation that was based on a [mistake] of law or fact and would not have been made but for that mistake. The testator's last effective will, prior to the set-aside revocation, will once again control his estate [if the last will was closer to accomplishing the person's intent] - Ask: what is the testator's true intent? - **Changes After Will Execution** - Abatement---funds will be used to pay the debts of the estate in the following order: - Property passing by intestacy - Residuary property - Property not specifically or demonstratively devised - **[General devise]** = specific dollar amount (i.e. I give \$400 to my daughter) - Ademption applies - **[Demonstrative devise]** = general devise that identifies specific property from which the proceeds are to be derived (Ademption does not apply meaning if the property isn't in the estate at death, the beneficiary takes nothing) (i.e. I give \$400 to my daughter to be paid from the sale of my record collection) - When a designated item is absent from the estate, the demonstrative devise is treated as a general devise - **[Specific devise]** = gift of property that is explicitly identified (i.e. if I'm giving someone a record player and the record player is gone that's it. Not getting replaced!) - Ademption applies - **[Lapse and Anti-Lapse]** (when making mind map, make sure to depict the correlation b/t the lapse statute and simultaneous death statute) ⭐️ - If the beneficiary predeceases the testator, the gift lapses (i.e. courts thought this was VERY harsh) - Generally, a beneficiary must survive in order to receive gift. - **Anti-lapse statute**---the predeceasing beneficiary's surviving descendants will take the gift per stripes IF: - The beneficiary is a grandparent or descendant of the grandparent; (no blood = no \$\$\$) and - Class gift---if a will makes a gift to a class only the class members who survive the testator take a share of the gift [unless] the will provides otherwise or the anti-lapse statute's requirements are met - **Simultaneous Death** - Uniform Simultaneous Death Act---when distribution of property depends on the order of beneficiaries' deaths, and the order cannot be established, the property of each deceased beneficiary is distributed as if he survived the other - This means that the beneficiary or heir is treated as having died before the testator - The Act applies unless there are specific contrary provisions in the will - **Disclaimers** - Beneficiary or heir can disclaim a gift, which treats it a though the heir died immediately before the interest was created - Disclaimers can be made at any time before the probate process has ceased! - Can be total or partial - Valid Disclaimer - A writing identified as a disclaimer; - Description of the interest being disclaimed - Signature, witnessed, and acknowledged; and - Delivery - Disclaimer is [BARRED]: - Beneficiary is insolvent - Property is sold pursuant to judicial process - Beneficiary assigns or transfers the interest, or contracts to do so - Beneficiary accepts property or benefit - Beneficiary waives right to disclaim in writing - **Lifetime Gifts** - Advancement (intestate share) - A gift to an heir, during decedent's life, with the intent that the gift be applied against the heir's estate - Intention must be declared contemporaneous writing by decedent or - Heir must acknowledge the advancement in writing - Ademption by satisfaction - A gift to a beneficiary after the will is executed, but made during testator's life, may satisfy a testamentary gift if testator intends the gift to have that effect - Testator must provide for satisfaction in the will or contemporaneous writing or; - Devisee must acknowledge the satisfaction in writing **Restrictions on Power of Testation** - Pretermitted Spouse - A surviving spouse who may not have been included in the will because the will was created before the marriage - There is [no time limit] for how long you have to be married - Pretermitted spouse = 30% - Pretermitted spouse gets to choose between (1) 50% of the probate estate or (2) the elective share - Pretermitted spouse will receive an intestate share in the estate, unless: - Provision was made for the spouse, or provision was waived, in prenuptial or postnuptial agreement - Spouse is otherwise provided for in the will or - The will states it will not make provision for the spouse - Pretermitted Child - A child omitted from a will who was born or adopted [AFTER] the will was made is entitled to a share equal to their intestate share [unless]: - The omission was intentional - Testator has one or more children at the time will was made and he devised substantially all the estate to the other parent of the pretermitted child, and the other parent survived the testator - With a non-martial child, it is the date of birth, not the [date of legitimation] that controls - A child who is a [minor] can be disinherited by their parent in the will ⁉️ - Elective Share - A surviving spouse can choose to elect a statutory share of the state instead of taking under the will - In Florida = the elective share is 30% of the elective estate - *[Property making up the elective estate]*; - Probate estate - Decedent's interest in "pay on death," "transfer on death," or "in trust for" accounts - Decedent's fractional interest in property held as joint tenancy of right to survivorship - Revocable trusts - Irrevocable transfers where decedent retained right or income or principle - Net cash surrender value of decedent's life insurance - Pension death benefits - Property transferred within 1 year before death - *[Procedure for making election:]* - Timing---election must be made within the earlier of - Six (6) months after service of the notice of administration or - Two (2) years after decedent's death - Who may make the election? - Surviving spouse---Attorney---Representative under a Power of Attorney---Guardianship of the Property - If the surviving spouse dies, the right of election dies with her **Will Contests** - **In General** - A will contest challenges whether the document was a valid will - Can be challenged in whole or in part - May not be challenged before the testator's death - In Florida, no contest clauses (if you contest my will you get nothing) are [unenforceable!] - **Burden of Proof** - The burden is on the proponent of the will to establish evidence of valid execution and formation - *[Self-proving wills]* satisfies the prima facie elements - Burden then shifts to challenger to prove will is invalid - **Time for Filing** - [If personal representative is named in the will ] - Upon service of the notice of administration, an interested party has three (3) months to file an objection, or else forever barred - [If the personal representative is appointed by petition]: - Interested parties must raise objections at the initial hearing for appointment of personal representative - **Types of Challenges** - *[Testator's Capacity ]* - Capacity = sound mind, and 18 years or older (or emancipated minor) - Sound mind: - Low bar - Understands nature and extent of property - Understands the persons who are the natural objects of his bounty and - Understands the nature of the disposition being made - Burden of proof is on [challenger] to show that testator lacked capacity at the time the will was executed - Note: capacity need not continue until death - Mere old ag, physical frailty, sickness, failing memory or vacillating judgment DOES NOT necessarily mean the testator did not possess capacity - *[Undue Influence] (high burden)* - Influence was exerted: - To [overpower the mind and free will of testator; and ] - "but for" the influence, will would have never happened - A [presumption of undue influence] arises if the beneficiary was in a "confidential relationship" with the testator and [participated in] [procuring the will] - *[Fraud]* - *(1) Fraud in the Factum* - Requires showing that testator was willfully deceived as to character or content of the instrument (ex. signing something that's giving everything to the person) - *(2) Fraud in the Inducement* - Requires showing that testator was willfully deceived as to extrinsic facts that induced the will or a particular disposition (ex. person says sign this will and I get 15% but it's really 55%) - *[Mistake ]* - If a mistake of fact or law affects testator's intent or the will's terms, the court may reform the will to reflect testator's intent upon a showing of clear and convincing evidence - Mistake in execution---if the argument is that, due to a mistake of law or fact, testator did not know he was signing a will, this is actually a challenge to testator's intent **Probate Process** - *[Proving the Will ]* - Self-proving affidavit - Testimony of any attesting witness; or - If no competent witnesses, then nominated personal representative may give oath that she believes will is valid - *[Personal Representative ]* - Requirements - 18+ - Mental capacity - Not a convicted felon - Florida Resident - Exception: a non-resident may serve as PR if they: - Testator's grandparents or their descendants - Testator's adopted children or parents or - Testator's spouse, or spouses' parent, grandparent, child, grand child - The spouse of anyone on this list - *Preference in Appointment* - If there is a will; - Named PR - Person selected by majority interest entitled to the estate - Any devisee if more than one (1) applies, court will appoint best qualified - If there is no will; - Surviving spouse - Person selected by majority in interest of the heirs - Heir nearest in degree of relation; if more than 1 applies, court will appoint the best qualified - *Duties* - Secure and preserve the estate - Keep estate assets separate from other property - File inventory - *Powers* - Can act as [fee simple owner] - Sometimes they need a court order: - Operating decedent's unincorporated business for more than four (4) months - Selling real property (ex. land, houses) unless: - Exception: Will grants the PR to sell - *Liability* - [Breach of Contracts ] - PR no individually liable on contracts unless she fails to reveal her capacity as PR, or the contract provides otherwise - [Torts] - PR liable if personally at fault or - Acting in bad-faith - There's are ways around this, speak to a professional in the area - *Grounds for Removal* - Incapacity - Failure to account or comply with court order - Waste and misadministration of estate - Felony conviction - Insolvency if commercial PR - Conflict of interest - Disqualification - Creditors' Claims (MEMORIZE) - 1^st^: Cost and expenses of administration - 2^nd^: Reasonable funeral expenses up to six-thousand (\$6,000) - 3^rd^: debts and taxes with preference under federal law - 4^th^: medical care for last 60 days of last illness - 5^th^: family allowance - 6^th^: arrearage from court-ordered child support - 7^th^: debts acquired by the continuance of decedent's business - 8^th^: All other claims - *[Notice and Filing ]* - PR must file a notice to creditors for two (2) consecutive weeks in a newspaper published in the county of administration - PR must search for creditors and serve the notice on each creditor within three (3) months of first publication - Creditors must file claims before the later of - 3 months after the date of first publication of the notice to creditors - 30 days after date of service of the notice - PR must serve a Notice of Administration on: - Surviving spouse - Beneficiaries - Trustee of decedent's revocable trust, if any - Beneficiaries of revocable trust, if any - Persons entitled to exempt property - *Special Forms of Administration* - Summary of Administration - Estate's value is less than *[\$75,000]* or - Person has been dead for more than two (2) years - Ancillary Administration - Non-resident dies leaving FL property, an ancillary probate proceeding should be opened in that county to dispose of the FL property - *Closing the Estate* - Once the estate has been wrapped up, PR must file a final accounting and service it on interested parties - If no objection to the accounting is filed within 30 days, assets will be distributed and PR discharged