Florida Bar -- Wills

INTESTACY - die without a will

• Basic Vocabulary

o Decedent ("D") - dead person

o Descendant - individual directly related to someone through parentage

o Collateral Heir - related to D through a common ancestor but are not descendants

o Descent - transfer of D's property to D's heirs according to intestacy statute

o Heir - individual entitled to D's property under intestacy statute

o Intestate - die in possession of property subject to probate that does not pass according to will

o Probate - formal process involving the state by which ownership of property is transferred from D to someone else

Intestacy - Who Inherits that?

1) Survivor Spouse

2) Surviving Children

3) Parents

4) Siblings and their Descendants

5) Paternal/Maternal Kindred

6) Escheat

1) Survivor Spouse

§ SS + no kids or just their kids

o SS = 100%

§ SS + either had kids w/ anyone else

o SS = 50%

§ Marriage Requirement

o Must have been legally married at the time of D's death

o Florida does not recognize common law marriage

(2) Surviving Children

§ Per Stirpes - requires estate be divided by number of descendants who survived

o If one pre-deceased, if that one has surviving children, then their share goes to their children

(3) Parents

§ Both alive à split; one alive à whole estate

§ If parental rights are terminated before D's death, then right to take is terminated (treated as pre-deceasing D)

(4) Siblings and their Descendants

§ Distribution to siblings of D, or to the surviving children of the sibling, per stirpes

(5) Paternal/Maternal Kindred

§ Distribution to maternal and paternal relatives 50/50

o First to grandparents

o If no grandparents, then to descendants of grandparents (aunts, uncles, cousins)

(6) Escheat

§ No relatives à property escheats to the state

Family Relationships

o Adoption

§ Legal Adoption - court order

o Rule: adopted child becomes descendant of the adopting parent as well as kindred

o Rule: child is no longer a descendant for natural parent/family

• Exceptions

o Step-Parents

o Close Relative Adoption

Virtual Adoption - equitable doctrine

o Allows child who was not legally adopted to share in the intestate estate of an individual who was going to adopt

o Child must prove by C&C evidence:

• (1) An agreement for adoption existed;

• (2) Natural parents performed (gave up custody);

• (3) Child performed by living w/ those intending to adopt;

• (4) Part performance by alleged adoptive parents (took child in); and

• (5) Person who intended to adopt died intestate

Non-Marital Children - "born out of wedlock"

§ Mother - child inherits from mother; mother and family may inherit from child

§ Father - inheritance rights exist if:

o (1) Natural parents got married before or after child's birth;

o (2) Adjudication of paternity is established before or after father's death; or

o (3) Natural father acknowledges paternity in writing

After-Born Heirs

§ Inherit as if born during lifetime of decedent

§ Exception: artificial reproduction

o If conceived after D's death, then not a descendant (no inheritance)

o Half-Bloods

Only applies to inheritance by collateral kindred

o Half-blood gets 50% of what whole-blood would inherit

o **If ALL kindred are half-blood, then divided normally

Survival Requirements - heir must survive D to inherit from D

o Simultaneous Death

§ Simultaneous = heir is presumed to have pre-deceased D (if not enough evidence to determine)

§ No minimum survival time

§ Burden of proof of survival is on the one claiming through the heir (burden of proof = preponderance of evidence)

Advancements in Intestate Succession - gift made by D to relative w/ intent that it be applied to any share of estate relative entitled to

o Treated as an advancement if:

§ (1) D declared it to be advancement in contemporaneous writing; or

§ (2) Acknowledged in writing by heir

Heir Dies First

§ The advance does not factor into amount of estate taken by heir's descendants unless writing directs otherwise

Valuation - value of advancement is determined on first to occur:

§ (1) When heir gets the property; or

§ (2) When D dies

Hotchpot Procedure

§ Advancement added back to estate;

§ Resulting total estate is divided up per stirpes;

§ The advancement is deducted from the total share of the heir

EXECUTION OF WILLS

• Formalities

(1) Must be in writing

(2) Must be Signed by T or Proxy

(3) Must be Witnessed by 2 Individuals

(1) Must be in writing

§ Typed + handwriting = OK (fill-in-the-blank form is OK, too)

§ Not allowed:

o Holographic will - written and signed by T, but no witnesses

o Oral will

(2) Must be Signed by T or Proxy

§ Location - end of the will

§ Form of Signature - must indicate T's desire to sign ("X" is ok)

§ Signature by Proxy - permitted by person who:

o (1) Signs T's name;

o (2) In T's presence; and

o (3) At T's direction

o **Proxy can also be a witness

§ Presence Standard

o (1) Conscious Presence - must occur w/in range of any of T's physical senses

o (2) Scope of Vision - T must actually see or be capable of seeing the signing

(3) Must be Witnessed by 2 Individuals

§ Attestation and Signature

o Witnesses must attest and sign the will in T's presence as well as each other

o Must see T sign or T must acknowledge that he signed

o No requirement that witnesses read the will (or even know it is a will)

§ Age and Competency

o Age - no minimum age, but witness must be competent

o Competence - competent if have the ability to observe T signing and comprehend what is happening

Testamentary Intent

T must know he is signing a will and mean for it to have testamentary effect

o T is not required to read, but must have general knowledge of contents

o Intent is a question of fact

Testamentary Capacity

o (1) Be at least 18 (or emancipated minor); and

o (2) Have capacity at the time of signing

Formalities for Other Testamentary Instruments

o Military Testamentary Instruments - requirements:

§ (1) T signs (or proxy);

§ (2) JAG is the "presiding attorney"; and

§ (3) 2 disinterested attesting witnesses

Wills Executed by Non-Residents

Will is valid in Fl if it is valid under laws of place it was executed (NO holographic, nuncupative, or oral wills)

Codicils - supplement or amendment to existing will (CANNOT REPLACE THE WILL)

§ Execution - same formalities as will

§ Effect - republishes the will as of the date of the codicil's execution

o May validate an invalid will

Self-Proving Affidavits - "proves" the will

T and witnesses sign before a notary

o Effect: may be admitted to probate w/o further proof

Substitutes - allow assets to pass outside probate

o Revocable Living Trust

§ Settlor places property in trust; at death it is distributed per terms of the trust

§ Formalities of execution = same as for a will

Pour-Over Devise

§ D's property is transferred to a trust and distributed per trust terms, not will

§ Trust must be executed before or at the same time as the will

o OK if trust not funded during lifetime

Survivorship Property

§ JTRS, TBE - passes by operation of law

§ Joint Bank Accounts WRS

o Presumption that an account in 2 or more owners' names = goes to survivor

Totten Trust

§ Type of trust set up with a bank

§ Depositor sets up account and makes deposits FBO a beneficiary

o Depositor = legal title

o Beneficiary = equitable title

§ Depositor can revoke and take the money

Life Insurance + Death Benefits

Policy proceeds not part of estate, unless estate = beneficiary

Deeds

§ Need to be valid and delivered to grantee prior to grantor's death

§ Can also be delivered to escrow agent to hold until death

Effect of Divorce or Annulment

Transfer on death designation to a former spouse is VOID

will K

K to do something (make a will or a gift) or not to do something (revoke will, not make will, not make a gift)

o Requirements:

§ (1) In writing;

§ (2) Signed by agreeing parties;

§ (3) In presence of 2 attesting witnesses

§ ***Must also satisfy basic K requirements (offer, acceptance, consideration, and performance)

o Non-Resident of FL - valid in FL if valid where it was executed

Joint and Reciprocal Wills

one document, signed by at least 2 testators, and intended to be the will of each

§ Joint will revoked by one T is still valid for the other T

o Reciprocal Wills - separate wills of 2 or more persons w/ identical or reciprocal provisions

o Revocability

§ Revocable during T's life

§ If Ts entered into K not to revoke the wills à revocation may lead to breach of K action

Revocation in general

T can revoke up until death (even if there is a K not to revoke à will just be a breach of K)

o T must have capacity to revoke

Ways to Revoke

1) Subsequent Instrument

2) Revocation by Physical Act + Current Intent to Revoke

3) Operation of Law

1) Subsequent Instrument

§ Express Revocation - if three criteria are met:

o (1) T has a present intent to revoke;

o (2) Subsequent instrument is executed w/ same formalities as a will; and

o (3) Instrument identifies the will

o Ex., T makes Will #2 and in first paragraph states "this will revokes all of my previous wills..."

§ Implied Revocation

o When T has died and leaves subsequent inconsistent will or codicil w/o express revocation language

o Inconsistencies - most recent instrument controls and revokes prior inconsistencies

2) Revocation by Physical Act + Current Intent to Revoke

§ Physical Acts - burning, tearing, cancelling, defacing, obliterating and destroying + intent and purpose to revoke

§ Revocation by Third Party - permitted as long as physical act is:

o (1) at T's direction, and

o (2) in T's presence

§ No Partial Revocation by Physical Act - T cannot cross out certain devise and thereby eliminate only that devise from the will

§ Rebuttable Presumption of Revocation by T

o If will cannot be found or is damaged and T last had the will

• To rebut à competent and substantial evidence

o If found in possession of someone adverse to the will à no presumption

3) Operation of LAw

Subsequent Marriage - a will executed by an unmarried person is not revoked by a subsequent marriage

o Pretermitted Spouse

• T makes will, later marries; new spouse is entitled to a share the spouse would have received if T died

intestate

o Waiver of Rights as a Pretermitted Spouse

• Spouse can waive the right 100% or partially

o Waiver is a K that must be signed in presence of 2 witnesses

o Waiver can be made before or after marriage (if after à "fair disclosure" requirement)

Divorce or Annulment

o Voids any devise to former spouse (unless will or divorce provides otherwise)

Subsequent Birth or Adoption

Pretermitted child receives an intestate share unless will states omission was intentional

Revocation of Codicils

o Presumption of Reinstatement - reinstates will provisions changed by codicil

§ Revocation of will à revokes all codicils

§ Revocation of codicil à only revokes the codicil

Revival

o In General - revocation of a subsequent will does not automatically revive a prior will

§ To revive Will #1, T must either:

o (1) Re-Execute Will #1

• Re-write same terms into new will in another instrument that is formally executed as a will; or

• Re-execute an existing document w/ the required formalities

o (2) Republication by Codicil

• Execute a codicil to Will #1 revives the first will

• Codicil must expressly refer to Will #1 and be executed w/ the same formalities

Dependent Relative Revocation - equitable doctrine

§ T's revocation of a prior will is disregarded if based on a mistake of law or fact, and T would not have revoked but for that

belief

o Rebuttable presumption created that there is no intent to die intestate and revocation of Will #1 is conditioned on

the validity of Will #2

o Materially Different Provisions - b/w Will 1 and Will 2 will rebut the presumption

§ Key Fact Pattern

o T makes Will #2 w/ express language revoking Will #1; Will #2 is same as Will #1 but for one very minor change

o Will #2 is invalid; therefore, w/o this rule T would die intestate

Proof of Lost or Destroyed Will

o If will cannot be found AND presumption of revocation is overcome, the will can be probated if:

(1) Its contents are proven by 2 disinterested witnesses; or

§ (2) A "correct" copy is proved by 1 disinterested witness

Action to Contest Revocation

o Must wait until T dies

CONSTRUCTION

• Classification System

o Any testamentary disposition of property is a devise

o Four Classes of Devises

§ (1) Specific - can be distinguished from rest of estate w/ reasonable accuracy (e.g., To X, my mother's diamond ring)

§ (2) General - personal property to be satisfied from estate's general assets (e.g., To Y, $500)

§ (3) Demonstrative - monetary gift from a particular fund; paid from general assets if not enough money in fund

§ (4) Residuary - whatever is left after claims paid and other devises made

Incorporation by Reference

o Documents in Existence at Time of Will

§ A will may incorporate by reference to another document another writing not executed w/ will formalities if:

(1) Existed at time of execution of will;

o (2) Is intended to be incorporated; and

o (3) Is described in the will w/ sufficient certainty to permit identification

Florida Rule for Tangible Personal Property Lists

§ List can be made after will is executed

o Must be signed by T

o Must describe items and recipients w/ reasonable certainty

§ Multiple Lists - most recent controls

§ Conflict w/ Will - will controls who gets what if there is a conflict

Doctrine of Integration

§ Will consists of all pages present at time of execution and intended to be part of the will

Lapse -

when beneficiary dies before T à the gift may lapse and pass to the residuary

Anti-Lapse Statute

§ If elements are met, unless contrary intent appears in the will, the anti-lapse statute applies and the beneficiary's

descendants take per stirpes

§ Elements

o (1) Intended devisee must be T's grandparent, or a descendant of T's grandparent; and

o (2) Intended devisee dies before T

Lapse of Residuary Devise

When there are multiple beneficiaries for the residuary and one dies before T, the surviving residuary beneficiaries take the

dead beneficiary's share proportionally

o Exception: contrary intent or anti-lapse applies

Lapse of Class Gifts

§ If a class member dies, the surviving members of the class take (absent contrary provision or anti-lapse statute)

Abatement -

reduction of a devise or distribution when there is not enough in estate to pay all debts and make all devises

Order of Reductions

§ (1) Intestate property

§ (2) Residuary devises

§ (3) General devises

§ (4) Demonstrative and specific

Special Priority

§ Spousal Elective Share - a spousal devise given in satisfaction of or instead of spousal elective share does not abate until

exhaustion of other assets in same class

§ Valuable Consideration - a devise given for valuable consideration abates only to the extent of the excess over the amount of

value of the consideration until all others of the same class are exhausted

Right of Contribution

§ If one devisee loses devise to satisfy a creditor à pro-rata right of contribution from other devisees

Ademption

the denial of a gift to a beneficiary b/c the property is no longer in T's estate

Ademption by Extinction - applies only to specific devises

Substantial Change - in nature of the subject matter of a bequest = ademption

T's Intent - is admissible if:

o (1) Evidence reflects T did not intend by disposal to change the testamentary scheme; and

o (2) Extinct property can be traced to existing assets in T's estate

FL Anti-Ademption Statute

o Upon ademption (even partial), the devisee is entitled to whatever may be left

o Devisee may be entitled to additional relief, such as the balance on a purchase price from sale

Incapacitated T w/ a Guardian -

T becomes incapacitated and guardian must sell property to support T

o Ademption does not apply, UNLESS:

• T restores capacity and then survives for at least one year

Specifically-Devised Securities - rather than value of adeemed securities, devisee receives:

o

As much of devised security as is in the estate at T's death;

o Any other securities from same entity (stock split);

o Securities from another entity as a result of reorganization;

o Any additional securities as a result of a DRIP

Ademption by Satisfaction

§ A devise may be satisfied by gift during T's life after execution of a will, if T intended to satisfy the devise w/ the gift

§ One of three requirements must be satisfied:

o (1) Will specifically provides for deduction of the gift;

o (2) T acknowledges in contemporaneous writing that should be deducted; or

o (3) Recipient acknowledges in writing that should be deducted

Exoneration of Liens

o Lien on specifically devised property becomes obligation of beneficiary, unless will specifically directs lien be exonerated

PROTECTION OF SURVIVING SPOUSE & FAMILY

• Elective Share

designed to ensure SS is not disinherited

o Share is elective + replaces anything else SS would get under the will

Amount of Share - 30% of "elective estate"

Elective Estate - includes:

o Probate estate

o D's interest in POD accounts

o D's fractional interest in JTRS or TBE

o Life insurance proceeds

o Pension benefit amount payable to survivors

o Property transferred during the year preceding death that would have been in elective share unless excluded for

federal gift tax purposes

§ Value of Elective Estate

o Generally, FMV at date of death

• Property transferred in year prior to death = FMV on date of transfer

o Value of elective estate is reduced by claims paid or to be paid from estate

§ Value of Elective Estate

o Generally, FMV at date of death

• Property transferred in year prior to death = FMV on date of transfer

o Value of elective estate is reduced by claims paid or to be paid from estate

Time and Procedure

§ Claimed by SS, their agent under POA, or guardian

o Right is personal to the spouse

o If spouse dies w/o making election, the right is gone

§ Election must be filed w/in 6 months of being served w/ notice of administration, or w/in 2 years of death, whichever earlier

o May withdraw election w/in 8 months after death and before court's order of contribution

§ Election in bad faith à award of attorney's fees and costs against SS

Satisfaction of Elective Share - the following are applied, in order, to satisfy the elective share:

§ (1) Interests passing to or for the benefit of SS

§ (2) Equitable apportionment among classes of direct recipients

§ (3) SS's interest in trusts

§ (4) Recipients of charitable lead interests

Waiver of the Right of Election

Before or after marriage, the right of election can be waived, in whole or part, by:

o (1) Written K, agreement or waiver;

o (2) Signed by waiving party; and

o (3) In presence of 2 witnesses

§ Waiver After Marriage

o Requires a fair disclosure to others of the estate (no disclosure if done before marriage)

Homestead

o 3 Elements - if, at time of death, 3 elements are met à restrictions on devise of the property

§ (1) Property is real property owned by D;

§ (2) D is a FL resident; and

§ (3) Property was D's residence or that of the family

Restriction on Devise - homestead may not be devised if D is survived by a spouse or minor child

§ No minor child - can be devised only to spouse in fee simple absolute, unless spouse waived homestead rights

§ Homestead titled as JTRS or TBE - passes by operation of law

Descent of Homestead

§ Survived by SS + at least one descendant - SS takes life estate, w/ vested remainder to descendants per stirpes

If spouse disclaims, descendant's interest is not divested

o Tenants in Common Election - 1⁄2 undivided interest to SS; 1⁄2 undivided interest to descendants per stirpes

• SS makes irrevocable election w/in 6 months of death and before SS dies

Exempt Personal Property Set-Aside - if D domiciled in FL at time of death, then SS (children if no SS) entitled to certain personal property

o Property Subject to Set-Aside

§ Up to $20k household furnishings

§ 2 motor vehicles

§ Qualified tuition programs

§ Certain state benefits paid to teachers

§ Not applicable to property specifically or demonstratively set aside

File for Exemption:

§ Within the later of 4 months after service of notice of administration or 40 days after termination of proceeding

Exclusion of Exempt Property

§ Exempt property is excluded from the value of the estate before residuary, intestate, pretermitted, or elective shares are determined

Family Allowance - a support allowance for maintenance during administration of estate

Limit - no more than $18,000 (lump sum or installments)

o Who Receives Payment:

§ SS, if living

§ If SS is not living, then to lineal heirs (if dependent)

§ *****If lineal heirs not living w/ SS, allowance paid partly to lineal heir and partly to SS, according to needs

SUCCESSION

• Homicide - if you kill D, you cannot take under the will/intestacy

Effect - killer treated as if he pre-deceased D

§ JTRS/TBE - prevents killer from taking through survivorship

o Standard of Proof

§ Murder Conviction - conclusive proof

§ No Conviction - preponderance of evidence that killing was unlawful and intentional

o Third-Party Protection - BFP for value w/o notice à killer liable to estate for proceeds of sale to third party

o Killer's Issue - not punished; they can take

Spousal Rights

o Procured by Fraud, Duress or Undue Influence

§ Fraudulent SS loses benefits/rights of SS unless D:

o (1) Knew about fraud, duress, undue influence and still lived together voluntarily; or

o (2) Both spouses somehow ratified the marriage after the fact

§ Burden of Proof - on the party challenging validity

o Challenge must be brought w/in 4 years of death

§ Effect - treated as having pre-deceased D

o Bigamy

§ Subsequent bigamous marriage estops SS from taking an intestate share of 1st spouse's estate

Disclaimer - permitted, but must be affirmatively done b/c acceptance is presumed

o Procedure - the disclaimer must:

§ (1) Be in writing identified as a disclaimer;

§ (2) Describe what is being disclaimed;

§ (3) Be signed, witnessed and acknowledged; and

§ (4) Be delivered or filed

Timing -

must be filed w/in 9 months of date of death, or the heir reaches 21; whichever is later

o Effect -

disclaiming party is treated as if pre-deceased D

o Exception:

cannot disclaim if you are insolvent at time of inheritance

CONTESTS

• Process

Time to Contest - w/in 3 months after date of service of notice (PR serves notice on spouse and known beneficiaries)

o Burden of Proof - first on proponent of will (for execution and attestation), then on contestant (establish grounds for contest)

o Standing to Contest - any interested person who may reasonably be expected to be affected

Incapacity

o Capacity - must be at least 18 and have sound mind -- Testator must know at the time of signing:

o (1) Nature/extent of property;

o (2) Family;

o (3) Effect of disposition

o ***Can be a lucid moment à may not know date/attorney, but if you know 3 elements - have testamentary capacity

• Can be declared incapacitated by court and still have testamentary capacity!!!!!!!!!

§ Burden of Proof - is on the party alleging incapacity

Insane Delusion - false belief, despite evidence to the contrary, affected will

"But-For" Causation - T would not have disposed of property in same manner but for the insane delusion (must have but-for cause)

o Only affected part of the will is void

Undue Influence - affected part of will is void

o Elements

§ (1) Influence on T;

§ (2) Overpowers mind of T;

§ (3) T's will (or portion of it) would not have been executed but for influence

Burden of Proof - on the contestant

o Presumption of Undue Influence - arises if:

(1) A substantial beneficiary;

o Receives more under will or as result of revocation than would have otherwise; or

o Receives more than others in class (e.g., one son who gets way more)

§ (2) Had a confidential relationship w/ T; and

o T places trust in

§ (3) Actively procured the contested will or its revocation

o Beneficiary participates in making of will (arrange attorney, tell attorney what to do, getting witnesses, etc.)

§ **Once 3 elements met, burden shifts to proponent of will to show by preponderance of evidence no undue influence

Drafter/Person Related to Drafter as Beneficiary

Only allowed if attorney/beneficiary is related to T

Fraud (void)

o Elements - misrepresentation by a beneficiary:

§ (1) With intent to deceive T;

§ (2) With purpose of influencing testamentary disposition; and

§ (3) Results in will (or provision) would not have been executed but for fraud

2 Types of Fraud

(1) Fraud in the Inducement - knowingly false representation causing T to make will differently (affected part invalid)

§ (2) Fraud in Execution - forced signature, didn't know signing a will (entire will is invalid)

o Remedy - constructive trust

Mistake

o If mistake eliminates testamentary intent à no valid will

o Mistake in Execution - T unaware of type of instrument he is signing

§ Extrinsic evidence allowed to show whether T had intent

o Mistake in Drafting - immaterial if T knew and approved of will's contents (e.g., transposed address)

Ambiguities and Plain Meaning

o Will can be modified, even if contradicts plain meaning of will language, to satisfy T's intent if can be proven w/ C&C evidence

o If an ambiguity cannot be resolved, the devise in question fails

No-Contest (Forfeiture) Clauses -

unenforceable in FL