Wills

When Intestate Estate Arises

1. decedent dies without executing a will

2. decedent dies having revoked an executed will

3. decedent dies having executed a will that was later found to be invalid

Parital Intestacy

• beneficiary predeceased testator

• no residuary clause for property not passing by other clauses in the will

Surviving Spouse

• legal question, not based on factors

• CL marriage not recognized in florida, but recognize if validly entered into another jurisdiction

Estoppel (Spouse)

spouse completely repudiates marriage by subsequent conduct

Surviving Spouse Share (FL)

• spouse no decedents = 100%

• survived by spouse and decedents, all kid from surviving spouse = spouse 100%

• all kids both theirs, but surviving spouse has kids outside = spouse 50%; descendants = 50%

• not all kids from surviving spouse = spouse 50%; descendants = 50%

Descendants

any person in any generational level down the applicable individuals descending blood line

• includes children, grandchildren, adopted children

• per stirpes

• receive whatever portion of the estate is not allocated to the surviving spouse 

Parents

• next in priority if decedent is not survived by spouse or descendants

• if both survive decedent each take ½

• if only one survives decedent, that one takes entire estate

Siblings

• next in priority if decedent is not survived by a spouse or descendants or parents

• decedents brothers and sisters divide the estate

• if sibling that predeceased decedent is survived by descendants, those descendants take the sibling’s share

• per stirpes 

Kindred

• term covers decedents grandparents and their descendants

• consanguinity: related by blood

• descendant is survived by both paternal and maternal kindred, each group divides ½ of the estate, if only one group they receive entire estate

Kindred of Deceased Spouse

• kindred of last deceased spouse 

• last group of potential heirs if decedent not survived by all preceding groups

• relatives of deceased spouse that would have inherited from spouse, if spouse had survived and then died intestate 

Inheritance

• expectancy not a right

• intestate decedent’s death is the event that vests an heirs interest 

Missing Person

presumption of death after 5 years of continuous absence and unsuccessful diligent search

Per Stirpes

• start as generation closest to decedent

• count both the living children and any dead children who left kids of their own

• each child’s “branch” gets an equal share

• if a child is dead, heir kids split that child’s share

• kids step into parents shoes 

Adoption

• child deemed to be descendant of adopting parents, upon being adopted

• generally adopted children can no longer inherit through birth parents

Adoption Inheritance Birth Parents

• generally, cannot but 3 exceptions

  • when birth parent’s spouse has adopted child 

  • when child adopted by surviving parent’s new spouse, as long as new marriage and adoption after birth parent’s death

  • if sibling, grandparent, aunt, or uncle adopts orphaned child 

Virtual/Equitable Adoption

• clear and convincing evidence

• ELEMENTS

  • agreement to adopt between natural parents and alleged adoptive parents

  • performance by the natural parents of the child in giving up custody 

  • performance by the child by living in the home of the alleged adoptive parents

  • partial performance by the alleged adoptive parents in the taking the child into their home and treating the child as their own

  • intestacy of the alleged adoptive parents

Children Born Out of Wedlock

• generally no question as to the inheritance rights between a child and his mother and her family

• however, need to prove paternity to father

• if marriage ceremony, even if void, would be father’s child

• can inherit from father if (1) established in court or father written ack, AND (2) adjudication of paternity can be accomplished before or after father’s death

Afterborn Children

• children conceived prior to, but born after decedent’s death

• FL treats as if they had been born at the time of decedent’s death and are eligible the inherit 

• FL = no survival requirement

Half-Blood Heirs

• related to decedent through one common parent or grandparent

  • collateral heirs only not descendants or ancestors 

• inheritance of intestate estate

  • ½ as much as whole blood heir

  • equal if only half blood family members survive 

Children Born through Assisted Reproductive Methods

• covers children conceived through artificial insemination, in vitro insemination, donated eggs, or surrogacy

• children born after decedent’s death and conceived from eggs or sperm of a person or persons who died before the transfer of their eggs, sperm, or pre-embryos to a woman’s body, FL says not eligible for claim against decedent’s estate unless child is provided for by decedent

• not eligible for intestate inheritance

Qualifications for Personal Representative

• 19 years or older

• florida resident, unless qualifying family relationship to decedent

  • legally adopted child

  • lineal consanguinity to the decedent

  • spouse or brother, sister, uncle, aunt, nephew, niece of decedent, OR

  • spouse of a person otherwise qualified under this section 

• trust companies , banks, and other entities authorized and qualified to exercise fiduciary powers in florida

Priority-Testate Appointment

• decedent died testate and will names one or more qualified persons to serve as PR

  • can be co-PRs

• person named must qualify and willing to serve 

  • time consuming and liability to serving as PR

  • once appointment accepted cannot resign w/o court approval

• testator can name one or more alternate PR’s in will or grant another person the power to name a PR or successor PR

• beneficiary or group of beneficiaries who will receive majority of probate estate may agree on person appointed PR

• court may appoint qualified beneficiary named in the will who is willing to serve

• court may appoint any qualified person

Priority-Intestate Appointment

• surviving spouse

• BUT, if surviving spouse

  • waives right to serve

  • disqualified from serving

  • declines to serve

  • there is no surviving spouse, THEN

• majority of interest in heir selects an eligible person to be appointed PR

• absent agreement, heir in nearest degree to decedent

• court selects best qualified heir if several heirs of same degree seek appointment

• court may appoint any qualified capable person, if none of the above priority rules applies 

PR Appointment Priority Special Rules

• court may NOT appoint

  • employees of the court

  • judge to whom probate is assigned

• guardian, appointed by court, of persons property who is incompetent can select PR

• events occurring after court appoints PR may result in the appointment of different PR

  • will found later and admitted to probate names PR

  • PR later becomes ineligible

Execution of Wills

• strict compliance with execution requirements

• ELEMENTS

  • (1) will must be in writing

  • (2) testator must sign the will or can direct a proxy to sign on his behalf 

    • proxy must sign the testator’s name in testator’s presence

    • proxy name not required in will but advisable to include

    • testator signature must appear at the end of the will

  • (3) testator or proxy must sign in the presence of at least two witnesses, or testator must acknowledge previously signed by testator to at least two witnesses

  • (4) witness must sign in the presence of 

    • testator, AND

    • each other 

Duties of Witnesses to Will

1. actually witness the signing of the will (or acknowledgement of prior signing)

2. sign the will attesting to the fact

Presence Requirements

1. testator or proxy sign in presence of witnesses

2. if proxy, must sign in testator’s presence 

3. witnesses must sign in presence of testator

4. witnesses must sign in presence of each other

Execution of Wills: Presence Tests

1. line of vision test

2. conscious presence test

Line of Vision Test

requires each party be capable of seeing each other in the act of signing each other in the act if signing

• testator does not have to actually see the witnesses, but must be able to do so if looked at them in the act if signing

• nothing blocking testator’s view 

• testator cannot be looking to other way

Conscious Presence Test

• requires that a party mentally perceives that another is signing

• relevant party must know the other is signing, not just that others are in the room

Electronic Will Requirements

1. individuals must be supervised by notary public

2. must be authenticated and signing as part of online notarization process

3. witnesses must hear the testator acknowledging the testator has signed the electronic record

4. signing and witnesses must comply with FL stat

• allow testator and witnesses to be remote if using audio video communications

• online notary must confirm remote witness identity using procedure in statue

• witness must be in testator’s physical presence or present through audio video communication tech when testator affixes testators electronic signature

• witness must hear testator has signed electronic record

• witness remote from testator and appearing through audio video communication must confirm the witness is a resident and physically located in the US at time of witnessing

Electronic Will Presence Requirements

deemed to sign instrument in the presence of one another if witness is present and sign electronically by means of audio video communications that meets stat requirements

• real time , two way communication

• participants able to see, hear, and communicate with one another 

Questions to Ask for Electronic Will

testator must be asked

• whether his decision making is impaired by drugs/alcohol 

• testator has a physical or mental condition or long term disability that impairs testator’s ability to perform normal daily activities 

• testator requires assistance with daily care

if testator answers yes to any

• witness must satisfy the physical presence test

• cannot witness remotely

• testator must receive document indicating that vulnerable adults must have witnesses with them before signing

Additional Questions to Ask for Electronic Will Execution

1. are you currently married?

2. what are the names of anyone who assisted you in preparing the document you are signing?

3. what are the names of anyone who assisted you in accessing this video conference?

4. where are you currently located?

5. who is in the room with you?

Holographic Wills

Florida does not recognize

Qualifying as a Witness

• anyone competent may serve

  • judged by person’s ability to understood and be understood concerning witnessing of the will

  • florida allows interested witnesses, including beneficiaries of the will

Potential Risks with Interested Witnesses

• other beneficiaries or potential beneficiaries may challenge the will claiming undue influence by interested witness

• self-interest affects credibility as a witness to the execution of the will 

Attestation Clause

• states basic facts that occurred during the execution of the will

• may include additional information like number of pages in the will

Self-Proof Affidavit

• not required by recommended

• serves as sworn testimony that the execution of the will complies with Florida law

• both testator and witnesses sign the affidavit 

• may be signed at the time of the execution of the will or a later date

• testator must declare to witness the instrument is the testator’s will in self proof form 

Self-Proof Affidavit Electronic Will

• acknowledgement and affidavits must be part of electronic record containing will, or be attached to or logically associated with the electronic will 

• electronic will must designate “qualified custodian”

• electronic record containing will must be in qualified custodian’s custody at all times before being offered to probate

• qualified custodian with custody of the will at testator’s death must certify under oath that to the best of custodian’s knowledge, record has been at all times in the custody of the qualified custodian and has not been altered since the will was executed

If Validity of Will Contested 

• proponent of will has burden to establish prima facie that the will was properly executed and attested

• validity executed self-proof affidavit establishes prima facie the formal execution and attestation of the will

Drawbacks of Will Contests

• costly

• unwanted publicity

• may alter testator’s desired testamentary intent

In Terrorem Clause

provision that purports to penalize any interested person for contesting the will or instituting other proceedings related to the estate

• NOT valid in florida 

Requirements for Testamentary Capacity

• age or emancipation 

• sound mind

Age/Emancipation 

• 8 years or older

• emancipated minor by

  • marriage OR

  • at least 16 and court grants petition for emancipation

Sound Mind

• every person presumed to have testamentary capacity

• burden of proof on contestant to show testator lacked capacity

• ELEMENTS

  • 1. people who would normally inherit

  • 2. property testator owns

  • 3. effects of overall dispositive plan

Lucid Interval

period of time during which the testator returned to a state of comprehension and possessed actual testamentary capacity

Insane Delusion

spontaneous conception and acceptance as fact of that which has no real existence except in imagination, persistently adhered to against all evidence and reason

Presumption of Undue Influence Requirements

must prove beneficiary exerting undue influence:

1. was a substantial beneficiary

2. who occupied a confidential relationship

3. active procurement

Active Procurement Factors

• presence of beneficiary at execution of the will

• presence of beneficiary when testator expressed desire to make a will

• recommendation by beneficiary of attorney to draw the will

• knowledge of the contents of the will by beneficiary prior to execution

• giving instructions on preparation of the by beneficiary to attorney drawing the will

• securing witnesses to the will by beneficiary

• safekeeping of the will by beneficiary after execution

• EDRIKSS

Fraud in the Execution

• document altered or switched, testator misled to believe they are signing something else

• result: will or portion are void

• potential remedy: wrongdoer can be sued for tortious interference with inheritance

Fraud in Inducement

• testator intentionally misled into forming a testamentary intent that he otherwise would not have formed, the lie may constitute fraud in the inducement

• potential remedy: constructive trust imposed where transferee of property would be unjustly enriched if allowed to keep the property and certain other facts are found 

Duress

sufficient to invalidate a will or devise requires a showing that some threat of physical harm or coercion was made against testator

• result: will or portion void

• same rules for duress and fraud

Spoliation

• post-execution change in the will by an unauthorized third person

• must establish that an unauthorized change occurred

• result: focus shifts to establish terms of original will, if established, may be admitted to probate

Tortious Interference

• when a party intentionally interferes with testator’s intent in disposing of his property at death

• directed at testator and cause of action to protect deceased testator’s former rights to dispose of property freely without improper interference, not to protect beneficiary’s rights

Tortious Interference Elements

1. existence of expectancy

2. intentional interference with the expectation through tortious conduct

3. causation

4. damages 

3 Types of Mistakes

1. mistake in execution

2. mistake in inducement 

3. mistake in expression 

Mistake in Expression

• scrivener’s error - ask court to reform

  • add language or change language to implement testator’s intent

  • need “clear and convincing evidence” of testator’s intent

• ambiguity - ask court to construe the ambiguous language

  • interpret language, determine testator’s intent

Patent Ambiguity

obvious from face of document, originally limited to four corners of document, nut now allow extrinsic evidence

Latent Ambiguity

not ascertainable from reading the will, extrinsic evidence

Will Reformation

• correct mistake in the inducement and mistakes in the expression

• requires clear and convincing evidence 

Trust Reformation

• conform to settlor’s intent

• prove by clear and convincing evidence both

  • accomplishment of settlor’s intent, AND

  • trust terms affected by mistake of fact or law

Merger Doctrine

if no separation between legal and equitable interests in a trust instrument, the doctrine may apply and the trust be terminated

Delayed Discovery Doctrine

• action founded on fraud must be begun within the period of time prescribed with the period of time running from

  • time facts giving rise to the cause of the action were discovered or should have been discovered with the exercise of due diligence instead of running from any date prescribed elsewhere

  • in any event, action must be begun within 12 years after the date of the commission of the alleged fraud, regardless of the date the fraud was or should have been discovered 

Methods to Revoke Will/Codicil

• subsequent writing

• physical act

Requirements for Revocation of Will/Codicil

1. testator’s intent to revoke

2. testator must have testamentary capacity at the time

Subsequent Writing (Revocation)

1. properly executed will or codicil expressly revoking prior will

2. any properly executed subsequent writing 

• revoke an entire will or part thereof

• general revocation of all prior wills or specific will reference permitted 

Inconsistent Subsequent Will or Trust

• later does not expressly revoke prior will

• if both wills are validly executed but have inconsistent terms, later revokes the prior inconsistent terms

Revocation by Physical Act

• complete revocation, not amendment or partial revocation

• non electronic

  • burning, tearing, cancelling, defacing, obliterating, destroying will

  • required testator’s intent to revoke

  • does not apply to partial revocation

• electronic

  • deleting, cancelling, rendering unreadable, or obliterating

  • requires intent to revoke 

  • need clear and convincing evidence 

Presence Requirements Revocation

• physical and mental

• actual presence of testator

• need strict compliance

Devise to an Existing Trust

1. trust must exist when the will is executed, OR

2. two documents may be executed concurrently

• valid even if trust is revocable or is amended 

• if trust revokes in its entirety prior to testator’s death, devise to trust will be invalid 

Separate Written List of Tangible Personal Property

• tangible personal property (1) not used in a trade or business, and (2) not otherwise specifically devised in the will

• 3 requirements

  • testator must sign each list

  • property and recipients described with reasonable certainty

  • will must refer to possible existence of list

• may be written before or after will executed

• do not require witnesses

Dependent Relative Revocation

• invoked to prevent intestacy situations involving a revoked will

• requires

  • finding decedent preferred revokes will to intestacy, and 

  • attempted revocation was conditional  

Issues with Lost or Destroyed Wills

• if will’s terms cannot be established, the estate will likely pass by intestacy

• presumption: will is missing because decedent destroyed the will with purpose and intention of revoking it 

Later Discovery of Will

• will or codicil found after administration of the estate has commenced, document may be admitted to probate upon petition of interested person

• if estate fully administered an closed not permitted to reopen the estate despite later discovery UNLESS,

  • will was not timely introduced due to frau or other bad faith wrongdoing

• if will found too late to be admitted to probate, interested party may be able to bring civil suit for tortious interference with inheritance if will intentionally withheld from probate

CL Rules of Construction

courts may use general rule of construction to determine testator’s intent

Simultaneous Death Law

if there is insufficient evidence to determine that decedent and beneficiary did not die simultaneously, beneficiary treated as having died first 

Failure of Testamentary Provision

• failed non-residuary devise, becomes part of residue and goes to residuary devisees

• failed devise to residuary beneficiary, to other residuary takers pro rata

Nonademption of Specific Devises

• property sold by testator’s guardian, entitled to amount equal to net sales proceeds

• property sold by testator, entitles to unpaid balance of purchase price, condemnation or insurance proceeds

• secured obligation devised, receive any property taken in foreclosure or in lieu of foreclosure of that security

Ademption by Satisfaction

transfer to devisee prior to death is not a satisfaction of devise to devisee

Abate

when devises are reduced because estate assets are needed for other purposes; order of abatement depends on the type of devise

• testator can provide a provision for which property abates in what order or include stat rules in their will

• if will silent, stat rules apply

  • property that would pass by intestacy abates before devise

  • property covered by residuary clause abates next

  • property not specifically covered by specific or demonstrative devise abates last

Ademption by Extinction

when an estate does not own a particular item or property devised in a testator’s will

• only affects specific devise \

• testator’s intent

  • will silent if devisee should receive money or other property to replace missing devise, specific devisee has right to general pecuniary devise equal to net sale price, condemnation awards or insurance proceeds

Exoneration

specifically devised encumbered property passes free of debt (debt paid from residuary)

Apportionment of Estate Taxes

determination of which probate or non probate assets can be used for the payment of these taxes

Types of Devises

1. specific

2. demonstrative

3. general

4. residuary

Specific Devise

devise of property which is particularly designated, and which is to be satisfied only by the receipt of the particular property described

• specific item

• specific type of property

Demonstrative Devise

devise a fixed amount payable from,

• particular property, fund or from proceeds of the sale of a particular item, OR

• from general assets to he extent the particular source is insufficient or not part of the estate

General Devise

devises that are neither specific nor demonstrative, but indicate a particular amount or quantity to be received

• can be paid from any estate asset or fund

• does not have to be money, or property owned at death

• general devises paid before residuary devises

Residuary Devise

• gifts of whatever probate assets have not been devised by specific, demonstrative, or general devises

• may include property acquired after the will is executed

• may be the only devise in a will

Events that Could Affect Distribution of Estate

• catastrophic medical costs

• creditors

• expenses of estate admin

• estate taxes

• market value of assets decrease

• omitted spouse of child entitled to pretermined share

• spousal elective share

Trustee Duty

• personal representative entitle to payment from trustee of revocable trust when the decedent’s residuary estate is insufficient

• has duty to pay PR of settlor’s estate any amounts PR certifies are needed

Priority of Expenses and Obligations

• if assets insufficient to cover all obligations within a singles class, creditors receive only partial payment and those in higher numbered classes receive no payment

• partial payment is proportional to the amount of total expenses and obligations in that particular class

Classes of Priority Expenses

1. expenses of estate admin

2. expenses of decedent’s funeral (up to $6k)

3. debts and taxes under fed law like medicaid, court fees, costs and fines

4. expenses related to last 60 days of decedent’s final illness

5. family allowance to maintain certain family members during estate admin (capped at $18k)

6. court ordered child support

7. business debts of decedent’s unincorporated business incurred during admin

8. all other claims 

• PR may liquidate assets, subject to type of devise and order of abatement, unless claimant entitled to or willing to accept specific noncash assets

Ademption by Satisfaction

devisee received gift during testator’s life intended to satisfy a devise to that individual in part or in whole

nonademption

• devisee entitled to property devised and PR must acquire property for that purpose 

• devisee is entitled to receive some other property

• devisee not entitles to receive anything

• 2 factors to determine: (1) type of devise, and (2) reason property is not part of estate

Devisee Rights (Ademption by Extinction)

1. any remaining specifically devised property

2. any unpaid purchase price and security interest if testator sold property prior to death

3. any unpaid part of condemnation award 

4. any unpaid insurance proceeds, and 

5. any property owned because testator foreclosed on property covered by specifically devised obligation or property received in lieu of foreclosure 

Ademption by Extinction Exception

extrinsic evidence can prevent the ademption of a specific bequest of the bequeathed property can be traced to existing assets and if the evidence reflects that the testator did not intend by his disposal of the property to alter the testamentary scheme contained in his will

• testator’s intent not relevant if statute controls

Exoneration FL

• provides debt it to be paid from the residue only if shows that was testator’s intent

• will provision to pay debts, without more, not enough to establish testator intent

Calculation of Estate Taxes

• under FL constitution, FL cannot impose an estate tax the exceeds the amount allowed as a credit for federal estate taxes

• no credit for state death taxes at this time, has been changed to a deduction 

• rules applicable to estate taxes are typically owed if decedent owns or has rights to assets in excess of statutory exclusion amount AND those excess assets do not pass to spouse or charity  

Gross Estate

includes probate assets and non-probate assets