Term
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Definition
| A person dying without a valid will has died intestate and is referred to as the intestate. |
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Term
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Definition
A person who dies with a valid will is said to have died testate and is called the testatrix or
testator. |
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Term
| What is PARTIALLY TESTATE? |
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Definition
When a decedent’s will doesn’t dispose of all of his or her property, the decedent
has died partially intestate, rather than partially testate |
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Term
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Definition
| related to inheritance of land |
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Term
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Definition
succession of personal property; those who took personal property by intestacy were
called distributes or next of kin. |
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Term
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Definition
| disposition of land by will; the one to whom the land was given as a devisee |
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Term
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Definition
| disposition of personal property by will |
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Term
| Personal Property passes to a._____. Land passes to b.__________. |
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Definition
| a. administrator b. heirs |
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Term
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Definition
| relates to the decedent having made assets in Specific arrangements as to who gets one’s the non-probate assets; i.e., proceeds from an insurance policy) |
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Term
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Definition
| probate assets are mostly those the decedent’s name; i.e., stocks in name) |
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Term
| What does a decendent's probate estate consist of? |
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Definition
1. A decedent’s probate estate consists of property owned by the decedent at death and property acquired by
the decedent’s estate at or after the decedent’s death. |
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Term
| What 3 essential functions does probate perform? |
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Definition
a. making property owned at death marketable again (title clearing)
b. paying off the decedent’s debts (creditor protection)
c. implementing the decedent’s donative intent respecting the property that remains once the claims of
creditors have been discharged (distribution) |
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Term
The following are examples of what? the revocable trust, life-insurance contract, pension-account contract, and
joint bank or stock account |
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Definition
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Term
| What 4 main will substitutes constitute the core of the non probate system? |
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Definition
i. Life insurance
ii. Pension accounts
iii. Joint accounts
iv. Revocable trusts: defined as a trust in which the settler reserves the right to terminate the trust and
recover the trust property and any undistributed income. There are several types of trusts generally. |
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Term
| What is a testamentary trust? |
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Definition
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Term
| What is a (B.) Lifetime Trusts (a.k.a. Inter vivos trusts, or Non-testamentary trusts)? |
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Definition
trusts created by non-
probate instruments. A lifetime trust can be revocable or irrevocable. If it remains revocable until the settlor’s death, it operates as a will substitute and serves the function of avoiding probate. |
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Term
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Definition
| a revocable trust created by one’s deposit of money in one’s own name as a trustee for another. A Totten trust is commonly used to indicate a successor to the account without having to create a will. (“it is simply a deposit account in which the beneficiary designation is thinly camouflaged under language of trust.” The depositor names himself trustee for the beneficiary, but retains lifetime dominion and the power to revoke.) |
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Term
| Totten Trusts are seen in what Florida Probate Rule ? |
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Definition
| in Florida Probate Rule § 655.82(h)(2) – “Pay – on – death” (POD) designation means the designation of a beneficiary in an account in the name of one or more parties as trustees for one or more beneficiaries if the relationship is established by the terms of the account of there is no subject of the trust other than the sums on deposit in the account, whether or not payment to the beneficiary is mentioned. |
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Term
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Definition
| holds title to and manages the trust property for the benefit of another person(s) |
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Term
| Most will substitutes – but not all – are asset-specific; what does this mean? |
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Definition
| each deals with a single type of property, be it life insurance proceeds, a bank balance, mutual fund shares, etc. |
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Term
| Property that passes through a will substitute what? |
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Definition
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Term
| What is an imperfect will substitute? |
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Definition
imperfect because when such a substitute is set up, the property may not
always revert back to its owner; the most common imperfect substitute is a joint tenancy |
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Term
| What steps does an executor take? |
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Definition
ii. The first thing an executor does is inventory the assets in the name of the decedent; would take
possession of these assets would first pay the creditors off; once creditors are paid, then, second, the remaining balance is distributed amongst those who have valid claims (i.e., making property marketable again; property would not be marketable if it remained in the name of the decedent). Third, the executor/administrator implements the decedent’s wishes as to the distribution of the assets |
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Term
| What if there is not enough (money)probate assets to pay off creditors, in Florida? |
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Definition
non-probate assets may
be used to pay off debts (not necessarily in all jurisdictions; many jurisdictions don’t allow this – functions as a protective guard for the beneficiary named in non-probate assets) |
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Term
| What is the Requirement of Survival of the Decedent? |
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Definition
only persons who survive the decedent are entitled to
succeed to the decedent’s property by testate or intestate succession – must have sufficient evidence of survival |
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Term
| What is the UPC rule on simultaneous death? |
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Definition
Uniform Probate Code § 2-702 establishes a 120
hour: if the two people die within 120 hours of
the first death, their deaths are treated as
simultaneously - each person is treated as if
they were the survivor (distribute as if they
survived) |
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Term
| What is the FL rule on simultaneous death? |
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Definition
Florida Probate Rule § 732.601: provides that
“unless a contrary intention appears in the
governing instrument, when a title to property or
its devolution depends on priority of death and
there is insufficient evidence that the persons
have died otherwise than simultaneously, the
property of each person shall be disposed of as
if that person survived. |
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Term
| What is the common law rule for Relatives in Gestation at the Decedent’s Death? |
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Definition
| persons who are born after the decedent’s death generally are not eligible to receive the decedent’s property. The common law treats children in gestation at the decedent’s death as if they were alive at the decedent’s death if they subsequently are born alive. In administering this principle, there is precedent suggesting a rebuttable presumption that the date of conception was nine months prior to the date of birth. |
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Term
| What is the Upc rule for Relatives in Gestation at the Decedent’s Death? |
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Definition
Uniform Probate Code § 2-108: Individuals who a
gestation are treated as living if the individual
lives 120 hours or more after birth. |
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Term
| What is the FL rule for Relatives in Gestation at the Decedent’s Death? |
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Definition
Florida Probate Rule § 732.106: If the heir is
conceived before his death, but born after, they
will inherit the property as if they were born
during the decedent’s lifetime. |
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Term
| What is the Homestead exemption? |
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Definition
(1) Homestead – Constitutional protection in Florida that does not allow the property to go into probate
Homesteads are NOT subject to administration in Florida – go straight to beneficiary |
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Term
| What is exempt property in florida? |
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Definition
| family use vehicles not subject to creditors, furniture up to 10,000 Ithink, (3) Family Allowance Florida max is $18,000 |
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Term
| What are the 3 distribution types? |
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Definition
1. Strict per-stirpes (Fla.)
2. Modified Per-stirpes
3. Per-capita at each generation (UPC) |
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Term
| What system of distribution does fl follow? |
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Definition
| Strict per-Stirpes System. |
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Term
| What are the steps for strict per stirpes? |
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Definition
Step One: Divide estate into primary shares at the generation nearest to decedent – described by courts as the generation at which “stocks” or “roots” or “stirpes” are determined
# of primary shares = # of children alive at decedent’s death + # of children who predeceased decedent leaving descendants who survived decedent
Any deceased children who have no living descendants are disregarded in determining number of primary shares
# of primary shares is determined at children generation even if no children survive decedent
Step Two: Allocate primary shares – one shares goes to each living member of the children generation, if any, and one share also goes to the descendants of each deceased child with living descendants
Step Three: Divide and subdivide each primary share allocated to living descendants of a deceased child – each of these primary shares is divided and subdivided among the deceased child’s descendants |
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Term
| What are the steps for modified per stirpes? |
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Definition
Step One: Divide estate into primary shares at the generation nearest to decedent ***decedent that contains at least ONE living member***– described by courts as the generation at which “stocks” or “roots” or “stirpes” are determined
# of primary shares = # of children alive at decedent’s death + # of children who predeceased decedent leaving descendants who survived decedent
Any deceased children who have no living descendants are disregarded in determining number of primary shares
# of primary shares is determined at children generation even if no children survive decedent
Step Two: Allocate primary shares – one shares goes to each living member of the children generation, if any, and one share also goes to the descendants of each deceased child with living descendants
Step Three: Divide and subdivide each primary share allocated to living descendants of a deceased child – each of these primary shares is divided and subdivided among the deceased child’s descendants |
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Term
| What system of distribution does the UPC follow? |
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Definition
| Per-Capita at each Generation. |
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Term
| What are the steps for per capita distribution? |
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Definition
UPC § 2-106 assures equality among members of the same generation whose parents predeceased them.
Step One: Divide estate into primary shares at nearest generation to decedent that contains at least one living member – number of primary shares is the # of living persons in that generation + # of deceased persons in that generation who have living descendants
Step Two: Allocate one primary share to each living member of the primary-share generation
Step Three: Combine the remaining primary shares, if any, into a single share and assume that the descendants already allocated a share (and their descendants) had predeceased the decedent, then distribute that single share among the decedent’s descendants in accordance with Step One. |
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Term
| What is the ONLY TIME modified per-stirpes differs from strict per-stirpes ? |
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Definition
| when ALL of the 1st generation of children are deceased |
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Term
| Under Fl, what is the spouses share? |
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Definition
Florida Probate Rule § 732.102 provides for the
spouse’s share: The intestate share of the
surviving spouse is:
(1) If there is no surviving lineal descendants of
the decedent (i.e., decedent did not have
kids), the entire intestate estate.
(2) If there are surviving lineal descendants of
the decedent, all of whom are also lineal
descendants of the surviving spouse (i.e.,
the decedent and spouse have kids), the
first $60,000 of the intestate estate, plus ½
of the remaining estate. The other ½
passes to the descendants, per stirpes..
(3) If there are surviving lineal descendants,
one or more of whom are not lineal
descendants of the surviving spouse (i.e.,
the decedent has kids that are not from the
surviving spouse), one-half of the intestate
estate. The surviving spouse takes ½ of the
estate and the other half passes to the
descendants per stirpes |
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Term
| Under UPC what is the spouses share? |
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Definition
Uniform Probate Code § 2-102 provides for the
spouse’s share: The intestate share of a
decedent’s surviving spouse is:
(1) the entire intestate estate if:
(i) no descendant or parent of the decedent
survives the decedent (i.e., the decedent
does not have kids surviving him/her or
his/her parents surviving); or
(ii) all of the decedent’s surviving
descendants are also descendants of the
surviving spouse and there is not other
descendant of the surviving spouse who
survives the decedent (i.e., the decedent
and the surviving spouse have kids
together and the surviving spouse does
not have other kids). The provision
gives the spouse the entirety of the
estate because it is presumed that the
surviving spouse will take care of the
children – a.k.a. “Conduit Theory”
(2) the first [$200,000] (immediately after
creditors are paid), plus ¾ of any balance of
the intestate estate, if no descendant of the
decedent survives the decedent, but a
parent of the decedent survives the decedent
(i.e., if the decedent does not have kids, but
has a parent that survives).
(3) the first [$150,000] (immediately after
creditors are paid), plus ½ of any balance of
the intestate estate, if all of the decedent’s
surviving descendants are also the
decedent’s surviving and the surviving
spouse has one or more surviving
descendants who are not descendants of the
decedent (i.e., the decedent and the
surviving have children and the surviving
spouse has children that are not from the
decedent).
(4) the first [$100,000] (immediately after
creditors are paid), plus ½ of any balance of
the intestate estate, if one or more of the
decedent’s surviving descendants are not
descendants of the surviving spouse (i.e., the
decedent does not have any kids with the
surviving spouse, but the surviving spouse
has kids). |
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Term
| What is the Effect of Divorce or Legal Separation on Right to Inherit? |
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Definition
The right of a spouse to inherit from the
estate of the other spouse is conditioned on the existence of the marital relationship at the time of the decedent’s death. |
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Term
| What is the share of dead descendants with none of their own descendants? |
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Definition
i. Descendants that died and don’t have their own descendants are not counted in terms of dividing
shares. |
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Term
| What is the def of per stirpes? |
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Definition
defined as proportionally divided between beneficiaries according to their
deceased ancestor’s share. |
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Term
| May a guardian be appionted by will? |
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Definition
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Term
| What are collateral heirs? |
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Definition
Collateral heirs are persons who stem not from one another, but from
a common ancestor, such as brothers and sisters who stem from the intestate’s parents, or uncles and aunts who stem from the intestate’s grandparents. |
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Term
| What is the UPC rule regarding treatment of children by parents who may be inheriting from their children? |
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Definition
(A.) UPC § 2-114(c) provides that neither a biological parent nor a parent’s kindred can inherit from
the child unless that parent “has openly treated the child as his [or hers], and has not refused to support the child.” |
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Term
| What is the fl rule for half bloods? |
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Definition
Florida Probate Rule § 732.105 provides that
when property descends to the collateral kindred
of the intestate and part of the collateral kindred
are of the whole blood to the intestate and the
other part of the half blood, those of the half
blood shall inherit only half as much as those of
the whole blood; but if all are of the half blood the
shall have whole parts. (Essentially, Florida
treats half-blood differently from whole blood.) |
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Term
| What is the UPC half blood rule? |
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Definition
Uniform Probate Code § 2-107: relatives of half
blood inherit the same share they would inherit if
they were of whole blood. |
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Term
| When is the only time the half blood rule is considered? |
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Definition
| when the decedent’s descendant(s) dies and their estate is being divided amongst collateral kindred (brothers and sisters). |
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Term
| What are relatives of affinity? |
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Definition
: Blood or adopted relatives of the decedent’s spouse, (i.e., parents, siblings, or
descendants of siblings,) and spouses of the decedent’s blood or adopted relatives, such as daughters, and sons-in-law are relatives by affinity. Such persons are not considered under intestate succession. |
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Term
| In fl how does the estate pass that was not inherited by a surviving spouse? |
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Definition
1. To Lineal Descendants (take per stirpes)
2. If No Lineal Descendants, to Parents or Surviving Parent (passes to the decedent’s mother and father in
equal shares; if only one parent survives, then that one parent takes the entire estate.)
3. If No Lineal Descendants or Parents, to Brothers and Sisters and Their Descendants (brothers/sisters take
per stirpes)
4. If No Lineal Descendants, Parents, or Descendants of Parents, the estate is divided into two shares. One
share goes to the maternal kindred and the other share goes to the paternal kindred as follows:
a. To Grandparents or Surviving Grandparent – If, for example, both maternal grandparents survive the ½
share for maternal kin goes to the two grandparents, ¼ each. If, however, only the maternal grandmother survives the decedent, she takes the entire ½ maternal share.
b. If No Grandparents, to Descendants of Grandparents, Per Stirpes – If, for example, both paternal
grandparents predeceased the decedent, the ½ share for paternal kin goes to paternal uncles and aunts and the descendants of deceased uncles and aunts, per stirpes.
c. If No Grandparents or Their Descendants on Maternal Side, to Grandparents or Descendants on
Paternal Side (and Vice Versa) – If, for example, there are no surviving paternal grandparents or descendants of paternal grandparents, the entire estate (and not just ½ ) goes to the maternal grandparents and their descendants (and vice versa) in accordance with the above two paragraphs.
5. If No Grandparents of Their Descendants, to Kindred of Last Deceased Spouse
6. If None of the Above, Escheat to the State. |
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Term
| IN FL what is the rule regarding if heirs can agree to change who inherits what? |
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Definition
Florida Probate Code § 733.815: Interested
persons can agree among themselves to alter the
interests, shares, or amounts to which they are
entitled in a written contract executed by them
(trustees of a testamentary trust are interested
persons under this section) |
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Term
| Under UPC what is the rule regarding if heirs can agree to change who inherits what? |
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Definition
Uniform Probate Code § 3-912: Successor can
agree among themselves to alter the interests,
shares or amounts that they are entitled to under
the will and the personal representative has to
decide by the agreement. |
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Term
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Definition
| (someone doesn’t want to accept an inherit – they disclaim) |
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Term
| What is the UPC rule for disclaimers? |
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Definition
Uniform Probate Code § 2-1105: you can disclaim
in whole or in part over property (including power of
appointment). A disclaimer must be:
(1) in writing,
(2) Declaring the disclaimer,
(3) Describing the interest disclaimed,
(4) Signed by person making the disclaimer,
and
(5) Delivered or filed
A disclaimer becomes irrevocable when it is
Delivered or filled. |
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Term
| What is the Florida rule for disclaimers? |
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Definition
Florida Probate Code § 733.801: What can be
disclaimed:
(1) Whole of any property,
(2) Any estate property,
(3) Any power of appointment.
The interest disclaimed shall descend in the
same manner as if the disclaimer had died.
A disclaimer must be:
(1) in writing,
(2) It shall declare the disclaimer and its
Extent.
(3) Describe the interest disclaimed,
(4) Executed in the manner for conveyance
of real property.
A disclaimer is irrevocable when recorded
by the clerk.
A copy needs to be delivered to the
personal representative, trustee or other
person having legal title to, or possession, of
the property being disclaimed. A person has
9 months after the event giving rise to the
right to disclaim to disclaim the property.
NOTE: Prof. Butler views the statute as reading
that the language “disclaimed interests” should
be read to treat the disclaimer as being dead,
and thus the disclaimer’s descendants would
not receive anything. The Bar Examiners view
this same language as simply skipping the
disclaimer and his descendants would be given
the inheritance. |
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Term
|
Definition
Creditors after you
Land worth nothing
Bankruptcy
Insolvency |
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Term
| Can a beneficiary disclaim to avoid creditors? |
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Definition
The prevailing view in the United States is that a beneficiary can disclaim an interest
to prevent creditors from reaching the property. Creditors’ rights may be defeated even if the disclaimer would otherwise qualify as a fraudulent conveyance. |
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Term
| how is disclaimed property disposed? |
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Definition
If the testamentary or non-testamentary instrument provides for an
alternative disposition in the event of a disclaimer, that alternative disposition controls. In the absence of an alternative disposition, a disclaimed interest passes as provided by the disclaimer statute or by the common law. In general, for property passing by will or by intestacy, the statutes apply the fiction that the disclaimant predeceased the decedent. For property passing by a non-testamentary instrument, they apply the fiction that the disclaimant predeceased the date that the instrument became effective. |
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Term
|
Definition
An advancement is a gift made during life to a family member. It is a gift, however, that
has the effect of reducing the share of the probate estate that the donee receives by intestate succession upon the donor’s death intestate. |
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Term
| What is the fl rule for advancement? |
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Definition
Florida Probate Rule § 733.806: If a person dies
intestate, property that the decedent have during
lifetime to an heir is treated as an advancement
against the heir’s share of the estate only if
declared in a contemporaneous writing by the
decedent OR acknowledged in writing by the
heir. The property advanced shall be valued at
the time the heir came into possession or
enjoyment of the property or at the time o the
death of the decedent, whichever first occurs. If
the recipient of the property does not survive the
decedent, the property shall not be taken into
account in computing the intestate share to be
received by the recipient’s descendants unless
the declaration or acknowledgment provides
otherwise. |
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Term
| What is important when making an advancement? |
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Definition
| a CONTEMPORANEOUS declaration with receipt of the property |
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Term
If a recipient is given more than their share as a descendant under intestate succession, does the
recipient have to give it back? |
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Definition
|
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Term
| What is a negative will and are they allowed? |
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Definition
| It is a will that seeks to keep someone from inheriting. Under UPC they are allowed. |
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Term
| What is a putative spouse and what is the rule? |
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Definition
The purpose of the putative spouse doctrine is to protect the financial and property
interests of persons who enter into a marriage believing in good faith that it is a valid marriage. Courts have treated such spouses as valid lawful spouses that survive the decedent for intestate purposes |
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Term
| what elements are necessary for a common law marriage? |
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Definition
a. Summarized Elements:
i. The parties presently agree to enter into the relationship of husband and wife
ii. Cohabitation, or actually and openly living together as husband and wife
iii. Parties hold themselves out to the world as husband and wife
iv. Acquire a reputation as a married couple |
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Term
| do step children or foster children take in intestate succession? |
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Definition
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Term
| If a child was adopted without the decedant's knowledge, will the adopted child inherit? |
|
Definition
|
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Term
| what are the 4 functions of a will? |
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Definition
a. EVIDENTIARY – solid evidence of the existence and content of the decedent’s directions; prevents the
necessity for litigation each time a testator dies since it is a document.
b. RITUAL – will formalities generally require the performance of a ceremony showing that testator
intended his statements to be operative
i. Show that the will is planned out, final and deliberate intent of testator’s
ii. Hard to prove authenticity of a document due to lack of evidence (testator is dead and witnesses
may be self-interested)
c. PROTECTIVE/CAUTIONARY – some indication that the directions were not casually arrived at; will
requirements safeguard testator against undue influence
i. Will may be made under duress; therefore, to ensure free will and protect testator, wills must
adhere to formalities
ii. Formalities also ensure testator’s competence.
d. CHANNELING – reason to think that the decedent had the mental capacity to comprehend what
property was owned and who were the so-called natural objects of the decedent’s bounty at the time the dispository decisions were made; will formalities create a safe harbor, which provides the testator with assurance that his wishes will be carried out b/c of the standardized words and procedures that must be in the will. |
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Term
| What is the fl rule for requirements of a will? |
|
Definition
FPC § 732.502: Every will must be in writing and
executed as follows:
(1)(a) Testator’s Signature: testator must sign the will
at the end; or the testator’s name must be
subscribed at the end of the will by some other
person in the testator’s presence and by the
testator’s direction.
(b) Witnesses - must witness the testator’s signing
or the testator’s acknowledgement of his
signature; Must have at least 2 witnesses
(c) Witnesses’ Signature – the attesting witnesses
must sign the will in the presence of the testator
and in the presence of each other.
(2) Any will, other than a holographic or nuncupative
will, executed by a nonresident of FL., either
before or after this law takes effect is valid as a
will in this if valid under the laws of the state or
country where the will was executed. A will in the
testator’s handwriting that has been executed in
accordance w/ (1) shall not be considered a
holographic will. |
|
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Term
| What is the upc rule for requirements of a will? |
|
Definition
UPC § 2-502:
(a) A will must be: (1) in writing; (2) signed by the
testator or in the testator’s name by some other
person in the testator’s conscious presence and
by the testator’s direction; and (3) signed by at
least 2 persons, each of whom signed w/in a
reasonable time after he/she witnessed either the
signing of the will by the testator or the person
instructed to sign.
(b) A will that does not comply w/ (a) is valid as a
holographic will, whether or not witnessed, if the
signature and material portions of the document
are in the testator’s handwriting.
(c) Intent that the document constitute the testator’s
will can be established by extrinsic evidence,
including, for holographic wills, portions of the
document that are not in the testator’s handwriting |
|
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Term
| What are the 3 requirements of a will? |
|
Definition
(1) will
must be in writing; (2) signed by the testator; and (3) attested by credible witnesses. |
|
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Term
| What is the line of vision test for witness presence? |
|
Definition
Line-of-Vision Test: The prevailing interpretation of the “presence” requirement is that the
witnesses must have signed within the testator’s “line of vision.” The line-of-vision test requires at a minimum “that the testator, without changing his position, might have seen the will being attested; it is not necessary that he actually saw it.” |
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Term
| What is the Conscious – Presence Test for presence of witnesses? |
|
Definition
(2.) Conscious – Presence Test: A number of courts, and now the Restatement 3d of Property
have interpreted the “presence” requirement more liberally. They have adopted the “conscious-presence” test, which recognizes that a person can sense the presence of another without seeing the other person. “If the witnesses are so near at hand that they are within the range of any f the testators sense, so that he knows what is going on, the presence requirement has been met. |
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Term
| Does the upc require presence of witness during signing the will? |
|
Definition
|
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Term
| Who may make a will in fl? |
|
Definition
| Any person who is of sound mind and who is either 18 or more years of age or an emancipated minor may make a will |
|
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Term
| When can you commence an action to contest validity of a will? |
|
Definition
| An action to contest the validity of a will may NOT be commenced before the death of the testator |
|
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Term
| What is lawyer liability for improper execution of a will? |
|
Definition
Lawyer who supervises execution of a will may be liable for intended devisees if lawyer caused the will to be invalidly executed
Lawyer not liable to potential beneficiary of will if decedent dies before lawyer completes preparation of will or arranges for execution b/c such a holding would cause lawyers to put undue pressure on clients to review wills and execute them – Radovich v. Locke-Paddon |
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Term
| According to Estate of Sauressig v. Goff, under the upc, must the witness sign the will before the death of the testator? |
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Definition
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Term
| What is a noncupative will? What are the rules? |
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Definition
: Defined as an oral will made in contemplation of imminent death from an injury
recently incurred. Nuncupative wills are invalid in most states, but those states allowing them, the amount that may be conveyed is usually limited by statutes, and they traditionally apply only to personal property. The testator must: (1) be dying and know it; (2) express orally the intent to make an oral will; and (3) call upon “competent” witnesses (usually at least two) to witness that the spoken words are testator’s last will. The witnesses must put into writing their testimony w/in a prescribed time after the act, and generally the nuncupative act must take place w/in the testator’s home, unless the testator was “surprised” by the “last illness” while on a journey. |
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Term
| What is a holographic will? |
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Definition
A will that is entirely handwritten by the testator. In many states, a holographic
will is valid even if not witnessed. (Holographic wills can, but do not have to be attested.) |
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Term
| What is the upc harmless error rule? |
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Definition
| Although a document or writing added upon a document was not executed in compliance with 2-502, the document or writing is treated as if it had been executed in compliance with that section of the proponent of the document or writing establishes by clear and convincing evidence that decedent intended that document or writing to constitute (i) the decedent’s will, (ii) a partial or complete revocation of the will, (iii) an addition to or alteration of the will, or (iv) a partial or complete revival of his formerly revoked will or of a formerly revoked portion of the will. |
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Term
| What heories may be validating of holographic wills containing some non-holographic matter? |
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Definition
Intent Theory – works or marks not intended by testator to be part of the will need not be in testator’s handwriting
Surplusage Theory – portions of the document in the testator’s handwriting are given effect as holographic will if they make sense as a will standing alone, w/o regard to the portions of the document not in testator’s handwriting. |
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Term
| does fl provide for harmless error? |
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Definition
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Term
| What is a self proved will? |
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Definition
A self-proved will is a will for which the testator and the witnesses have
executed an affidavit before a notary public or similar officer detailing the procedures following the execution of the testator’s will. A self-proved will also serves to eliminate the need for having the witnesses testify upon the filing the will to prove its authenticity. |
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Term
| Does the UPC let in extrinsic evidence to prove testamentary intent? |
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Definition
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Term
| What is the lucid interval rule? |
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Definition
| – A person who is mentally incapacitated part of the time but who has lucid intervals during which he or she meets the standard for mental capacity can, in the absence of an adjudication or statute that has contrary effect, make a valid will or a valid inter vivos donative transfer, provided such will or transfer is made during a lucid interval. |
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Term
| What is a “In terrorem Clause” and are they valid in fl? |
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Definition
clause that says that anyone who contests the will gets nothing
*** Florida – Such clauses are UNENFORCEABLE |
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Term
| What is the Fl rule on fraud/duress for wills? |
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Definition
FPC § 732.5165 – A will is void if the execution is
procured by fraud, duress, mistake, or undue
influence. Any part of the will is void if so procured,
but the remainder of the will not so procured shall be
valid if it is not invalid for other reasons. |
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Term
| What is fraud in the execution? |
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Definition
when testators are defrauded about the nature or contents of the
documents that are signing |
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Term
| What is fraud in the inducement? |
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Definition
when testators are intentionally misled into forming a testamentary
intention that they would not otherwise have formed. |
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Term
| IN FL how does a spouse take intestate? |
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Definition
| If the decedent has no surviving lineal des. then the spouse takes all. If there are surving lineal des. of the decedant, but not the spouse, then the spouse takes 1/2 and the rest is per stirpes. If there are lineal des. of the spouse AND the decedant, then the spouse gets 60,000 plus 1/2 of the remaining estate, the other 1/2 passes to the descendants per stirpes. |
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Term
| HOw does the spouse take in intestate succession under the UPC? |
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Definition
The spouse gets everything if the decedants parentsand kids are all dead or if all the decedants surviving des's are also the surving spouses and the surviving spouse has no other children.
Or 200,000 (after creditors) plus 3/4 of any balance if there is no descendant of the decedant surviving, but there are parents.
or the the 1st 150,000 plus 1/2 if all the surviving des' are also of the spouse but the spouse has other children
or 100,000 plus 1/2 if the decedant has any kids not of the surviving spouse |
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