Term
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Definition
| ascendants - parents, grandparents. decendants - children, grandchildren |
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Term
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Definition
| stem from a common anscester (ex: siblings) |
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Term
| Per Capita with Representation |
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Definition
| Stirpital shares are determined at the first level at which there are living takers |
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Term
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Definition
| the descendants of a deceased person take by representation the share that the deceased person would have taken had he survived to be an heir |
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Term
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Definition
| Stirpital shares are determined at the first generational level, whether or not there are living takers at that level |
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Term
| Surviving spouse takes entire intestate estate if... |
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Definition
| the decedent is also survived by descendants, all of whom are also descendants of the surviving spouse, and the spouse does not have any other descendants; or the decedent leaves no surviving descendants. |
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Term
| Surviving spouse takes half of the entire intestate estate if... |
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Definition
| if the decedent or the surviving spouse has descendants who are not the descendants of the other. |
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Term
| Decedent survived by descendants - all descendants of surviving spouse |
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Definition
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Term
| Decedent survived by descendants - some not descendants of surviving spouse |
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Definition
| Spouse - Half Estate, Descendants - Half Estate |
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Term
| Decedent survived by descendants - Spouse has descendants who are not descendants of decedant |
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Definition
| Spouse - Half Estate, Descendants - Half Estate |
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Term
| Decedent survived by Spouse - no descendants |
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Definition
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Term
| Decedent survived by descendants - but not spouse |
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Definition
| Descendants - Entire Estate |
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Term
| Effect of Divorce/Separation |
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Definition
| Divorce severs relationship & right to inherit; Legal Separation does not. |
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Term
| Intestate Share of Other Heirs |
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Definition
| Portion not going to surviving spouse goes to heirs in this order (until takers are found) - Descendants > Parents > Brothers & Sisters (& their descendants, per stirpes) > 1/2 to Paternal Grandparents, 1/2 to Maternal Grandparents (& their descendants, per stirpes) (both 1/2s to one side if the other is empty) > Kindred of the last deceased spouse as if they survived decedent and then died > Escheats to State |
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Term
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Definition
| treated the same as natural children for purposes of intestate succession, however adoption cuts ties to natural parents except when adopting parent marries one of the natural parents or the child is adopted by a close relative. Any parent, natural or adoptive, is barred from inheriting from a child if that parent's parental rights were terminated. |
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Term
| Stepchildren and Foster Children |
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Definition
| generally have no inheritance rights, however the doctrine of adoption by estoppel applies when legal custody is gained under an unfulfilled agreement to adopt a child. |
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Term
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Definition
| In Florida, heirs concieved before the decendent's death but born after inherit intestate property as if they had been born in the decedent's lifetime. |
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Term
| Right to Disclaim is Barred when... |
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Definition
| (1) beneficiary gives a written waiver of right to disclaim; (2) beneficiary accepts the property or any of its benefits; (3) the beneficiary voluntarily assigns, transfers, or encumbers the interest, or contracts to do so; (4) the property is sold pursuant to judicial process; or (5) the beneficiary is insolvent. |
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Term
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Definition
| Intentional bigamous conduct bars bigamous spouse from inheriting the other's estate |
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Term
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Definition
| Killer forfeits rights to victim's estate - transferred as if killer predeceased victim |
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Term
| Advancement of Intestate Share |
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Definition
| gift made inter vivos to a beneficiary as advancement of intestate share. No gift is considered an advancement unless this intention is declared in a contemporaneous writing by the decedent. |
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Term
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Definition
| gift made inter vivos to a beneficiary as advancement of testamentary share. doesn't apply unless the testator provides for satisfaction in the will or a contemporaneous writing, or the devisee acknowledges, in writing, the gift as one in satisfaction. |
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Term
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Definition
| revocable during testator's lifetime, operative at death; testator must have present intent that the instrument operate as will, parol evidence is admissable to show otherwise |
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Term
| Integration, Codicil, Incorporation by Reference |
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Definition
| Supplement to a will, attachments, etc |
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Term
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Definition
| operative only if stated conditions are satisfied; "if I don't return from this trip.." may show only intent and not actual condition |
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Term
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Definition
| must be 18+ or emancipated minor & have sound mind |
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Term
| Formal Requirements of Will |
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Definition
| testator's signature, all signatures as single contemporaneous transaction, signature at the end requirement (time or document), Presence requirement (conscious presence & scope of vision), Witnesses who may take |
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Term
| Attestation Clause or Self-Proving Affidavit |
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Definition
| recites elements of due execution of will and is prima facie evidence of those elements; affidavit sworn to by testator and witnesses before notary & functions like a deposition. |
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Term
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Definition
| Neither are ok in FL; even if valid elsewhere. (Holographic: handwritten and signed by testator but not properly witnessed.) |
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Term
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Definition
| valid in FL if (1) testator is elligible for military legal assistance, (2) executed in presence of military legal assistance counsel, (3) presence of two disinterested witnesses |
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Term
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Definition
| valid if valid elsewhere, unless oral or holographic |
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Term
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Definition
| tear that shit up (with intent or defered intent). Destroy it. For real. (or by subsequent instrument - same formalities as will) - can't partially revoke. Destruction of one copy is sufficient. If lost, presume revoked. |
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Term
| Marriage following Execution of Will |
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Definition
| pretermitted spouse takes an intestate share, unless otherwise waived in prenup etc. |
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Term
| Divorce/Annulment following Execution of Will |
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Definition
| (divorce is like death of spouse) revokes all provisions that favor the former spouse (as if spouse predeceased decedent) - same for revocable trusts, life insurance, etc |
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Term
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Definition
| failure of a gift because it's no longer in the estate at time of death |
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Term
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Definition
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Term
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Definition
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Term
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Definition
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Term
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Definition
| Surviving spouse can take 30% of decedent's elective estate (in addition to homestead, etc) INSTEAD of taking under the decedent's will. |
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Term
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Definition
| Family may petition for up to $18,000 to make ends meet during probate administration. |
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Term
| Exempt Personal Property Set-Aside |
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Definition
| Furniture, two vehicles, tuition programs, etc. are excluded form the value of estate. |
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Term
| Spouse disqualified from exercising spousal rights |
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Definition
| marriage by fraud, duress, or undue influence - unless it all came to light & decedent stayed (4 years to challenge - then it would pass as if bad spouse was dead) |
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Term
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Definition
| 3 month timeframe from notice of will |
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Term
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Definition
| (new law) if mistake of law or fact is proven by clear & convincing evid, the ct may reform the will to reflect testator's intent |
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Term
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Definition
| Defective Formation, Valid Revocation, Lack of Testimentary Capacity, Undue Influence, Fraud, Mistake |
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Term
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Definition
| 18+, mental capacity, not be a conv felon, & (unless related to decedent) be a FL resident. TESTATE: (1) person named in will; (2) person selected by majority in interest of persons entitled to the estate; (3) a devisee. INTESTATE: (1) surviving spouse; (2) person selected by majority in interest of persons entitled to the estate; (3) the heir in nearest degree |
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