• The living spouse receives the entire estate if no other descendant is alive
• If there are children then the spouse receives $60,000 plus one half

True or False:

In today's time, a will encompassess both aspects of a will & testament

FILL IN THE BLANK:

If a person dies without a will, then the person dies ________________

TRUE OR FALSE:

In FL, the term beneficiary can be used for a person who receives anything either through a will or intestate

TRUE OR FALSE:

In FL & the UPC, the term "personal representative" can be used for either a will or intestate

TRUE OR FALSE:

Most of the property in the U.S. is PROBATE property

NONPROBATE PROPERTY:

• Survivorship property
• Life insurance
• Pay on death, transfer on death & in trust for accounts
• Pension plans (IRA, 401K)
• Annuities
• Intervivos trusts
• Powers of appointment
• Homestead
• Wrongful death benefits

INTESTACY:

When does intestacy occur?

• Decedent never wrote a will

Intestacy can also occur when a decedent attepted to make a will but the will was deemed invalid

• Will revoked

• Divorced
• Annulled
• In unusual cases estoppel prevents a soups from taking from deceased spuose's estate (complete repudiation of the marriage)

• Married at death
• Even if separated
• Even in the process of divorce

HYPO:

H dies intestate & predeceases W & H's parents are dead and H & W have no children (H had $400,00 in assets). 

Who gets what?

• In Florida, W would get all the assets
• 732.102(1) is applicable b/c there are no surviving descendants

HYPO:

H predeceases W, H's mom is alive and H & W have no children.  Who gets what? 

HYPO:

H predeceases W, H & W have 1 child, C1, neither H nor W has other children (husband has $400,000 in assets).  Who gets what?

• W gets $60,000 plus one half of the balances of the entire estate ($230,000)
• 732.102(2) is applicabele b/c C1 is a surviving descendant of the decedent & a lineal descendant of the surviving spouse
• C1 will receive the rest ($170,000) - 732.103(1) descendants receive the share of the estate after the living spouse

HYPO:

H predeceases W, H & W have 1 child, C1, H has a child from a previous marriage, C2.  Who gets what?

W would receive half of the estate ($200,000) - Sect 732.102(3) b/c there is a surviving descendant that is not a lineal descendant of the surviving spouse

C1 & C2 would both receive half of the remaining $200,000 - Sect 732.103(1)

HYPO:

H predeceases W, H & W have 1 child, C1. W has a child from a previous marriage, C2. Who gets what?

• W would bet $230,000 - 732.102(2) - she gets $60,000 plus half of the balance
• C1 would receive the rese ($170,000) - 732.103(1) descendants receive the share of the estate after the living spouse
• C2 would not get anything b/c C2 is not a descendant of the decedent
• If C2 would habe been adopted by H then they would have been seen as a legal child of H

HYPO  

 H an only child, who was single and childless, died intestate at the age of 35. H was survived by the following: his maternal grandmother and maternal grandfather and his Uncle Ted. Uncle Ted was the only sibling of H’s father who died last year. Under Florida law how is H’s intestate estate distributed?

o   Half would go to the maternal grandmother and maternal grandfather

o   The other half would go the Uncle Ted

o   §732.103(4) – ½ goes to the maternal and ½ goes the paternal side

HYPO:

H an only child, who was single and childless, died intestate at the age of 35. H was survived by the following: maternal grandmothers sister, Great Aunt Coco, and her children and grandchildren.

o   H’s estate escheats to the state of Florida

o   In Florida you stop looking at the grandparents

     Two basic rules for all distributional systems

o   Rule #1 – a descendant cannot take if he or she has a living ancestor who is an eligible taker

§  Ex: Maternal GM dies and mom alive. Grandchild is not an eligible taker under an intestacy statute

o   Rule #2 – disregard anyone who died without issue

§  Ex: Mom had 3 kids but one predeceased leaving no children. Two living children each get ½

Hypo:

Albert, Ed, Carol, Bob, and Ellen predeceased Isabelle. Isabelle died intestate with $600,000. Distribute using 1990 UPC.

o   Start at the grandchildren’s level and the only one left is Diane

o   Follow rule #2 and disregard anyone who died without issue

o   Diane is getting $200,000 b/c it is 1/3 of the $600,000 since we ignore Carol

o   Pull the remaining $400,000 and divide among Bob, Carol and Ellen’s descendants

o   Debra does not receive anything b/c she still has a living ancestor, her mom (rule #1)

o   Barbara, Bill, and Emma each receive 1/3 of the $400,000, which is $133,000

Hypo:

Albert, Ed, Carol, Bob, and Ellen predeceased Isabelle. Isabelle died intestate with $600,000. Distribute using Stripe System

o   Divide 50/50 on each side

o   Debra is still blocked in this scenario (rule #1)

o   Albert gets $300,000 and Ed get $300,000

o   Ed’s $300,000 goes straight to Emma b/c Ellen and Ed are both dead

o   Albert’s $300,000 gets divided in half between Bob and Diane (rule #2 Carol died with issue, no living descendant)

o   Barbara and Bill each get ½ of Bob’s $150,000 ($75,000

Hypo:

Felix and Millie have child, Charles. Felix dies and Millie remarries. Henry adopts Charles. George is Felix’s father.

o   Can Charles inherit from Felix? Yes, b/c §732.108(1)(b) allows Charles to inherit from his natural father Felix. Though Millie remarried, Felix had already died and this does not cut off the ability of Charles to inherit from Felix.

o   George died next. Can Charles inherit from George? §732.108(1)(b) – Charles can inherit form George

 Hypo:

Felix and Millie have child, Charles. Felix and Millie get divorced. Felix dies. Millie remarries Henry and Henry adopts Charles. George, Felix’s father dies. Can Charles inherit from George or Felix? 

o   Yes b/c Millie remarried after Felix had died so

§732.108(1)(b) still works

Hypo:

Felix and Millie have child, Charles. Millie and Felix divorce. Millie remarries. Felix dies. Henry adopts Charles. George dies.  Can Charles inherit from George?

o  No, b/c Felix must have died before Millie remarries in order for Charles to inherit from George. §732.108(1)(b) would not apply.

 Hypo:

 Felix and Millie have child, Charles. Felix dies. Millie remarries. Henry adopts Charles. George dies. Millie dies.

Can Charles inherit from Millie?

o    Yes, b/c §732.108(1)(a) would allow Charles to inherit from his natural parent

Hypo:

Felix and Millie have child, Charles. Felix dies. Millie remarries. Henry adopts Charles. George dies. Millie dies. Henry dies.

Can Charles inherit from Henry?

 Hypo:

Frank and his wife, Mary, conceived a child on Jan.1. One month later, Frank died intestate. One month after that, Frank’s father, Gerald, died intestate. The child, Cathy, was born in September. Can Cathy inherit from Frank or Gerald’s estate?

o   Cathy can inherit from Frank and Gerald b/c §732.106 allow heirs of the decedent conceived before his or her death, but born thereafter to inherit intestate property as if they had been born during decedent’s lifetime. If Frank were alive then Cathy could not take b/c she would be blocked, but b/c Frank is dead then Cathy can take Gerald’s estate.

HYPO:

Dan died intestate with probate estate worth $60,000. He was survived only his three siblings, Adam, Betty, and Carol.

o   All three siblings are whole blood siblings.

§  Distribute evenly amongst the siblings (each gets $20,000)

o   All three siblings are half blood siblings.

§  Distribute evenly amongst the half blood siblings (each gets $20,000)

o   Adam and Betty are whole blood siblings and Carol is a half blood sibling.

§  Adam and Betty each get $24,000 and Carol gets $12,000

o   Adam is a whole blood sibling and both Betty and Carol are half blood siblings.

§  Adam receives $30,000 and Betty and Carol each get $15,000

o   Mistake in the execution – testator thinks he is executing another document, but executes the will

§  Ex: a power of attorney document

o   Mistake in the inducement – testator mistaken in facts leading to a testamentary disposition he would not otherwise have used

§  Ex: Testator thought son had died but he didn’t

o   Scriveners mistakes

§  No ambiguity (patent or latent) – just mistake

§  Ambiguities –testators intent