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FLORIDA WILLS PROFESSOR ELOISA RODRIGUEZ-DOD

FLORIDA INTERNATIONAL UNIVERSITY COLLEGE OF LAW

CHAPTER 1: INTESTACY

A. Terminology

1. Intestate

A person dies intestate if the person dies:

o ________________________________________________________________; o With an _________________________________________________________; or o With a will that fails to dispose of all the decedent’s probate property.

2. ____________________________________________________________________

o Persons entitled to receive the decedent’s intestate estate o Also referred to as _____________________________________________________ o Include surviving spouse, lineal and collateral heirs

a. Lineal Heirs

Decedent’s descendants (such as children, grandchildren, great-grandchildren, etc.) Decedent’s ascendants (parents and grandparents)

b. Collateral Heirs

Persons related to the decedent by a common parent or grandparent Include siblings, nieces and nephews, aunts and uncles (related by blood, NOT

marriage), and cousins

B. Per Stirpes Distribution

• Florida uses a strict per stirpes system of distribution. • Descendants of a deceased heir take that person’s share

by_______________________________________________________________. • The estate is divided at the generation nearest the decedent into as many shares as there are:

o ________________________ members of that generation; and o _________________________ members of that generation who left surviving descendants.

The surviving descendants of each deceased heir take that heir's share.

Example 1: Ivan, who died intestate, had three children, Alice, Bob, and Cindy. Cindy, who predeceased Ivan, was survived by two children, Charles and

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Kathy. Ivan's estate would be divided into three shares: Alice would take 1/3, Bob takes 1/3, and Cindy's children, Charles and Kathy, would take the 1/3 share Cindy would have gotten had she survived Ivan.

C. Surviving Spouse

1. Surviving Spouse but No Descendants

Spouse gets the ______________________________________________________.

2. Surviving Spouse and Descendants

o If all the descendants are descendants of BOTH decedent and spouse and neither have children from other relationships:

Surviving spouse takes ___________________________________________________.

o If the decedent is survived by his own descendant from another relationship:

Surviving spouse takes ______________________________________ of the estate.

o If the decedent has a descendant and there are other descendants who are either his from a different relationship or hers from a different relationship:

Surviving spouse takes ______________________________________ of the estate.

Example 2: Husband and Wife have one child. Husband also has a child from a prior marriage. Wife takes __________________________________.

Example 3: Husband and Wife have one child. Wife also has a child from a prior marriage. Wife takes ___________________________________.

Example 4: Husband has a child from a prior marriage. Wife also has a child from a prior marriage. Wife takes _____________________________.

3. Marriage Requirement

o Must be married to decedent at time of decedent’s death o ______________________ or __________________________ extinguishes a spouse’s right

to inherit from the decedent.

Right to inherit remains even if the couple is separated or in the midst of divorce proceedings

o Florida does NOT recognize ____________________________________________ entered into after 1/1/68.

D. Intestacy Rules for Children and Other Heirs

1. Decedent’s Descendants

o Will ________________________________________________ share the rest of the estate o Decedent NOT survived by spouse – descendants take the ___________________________.

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2. Decedent NOT Survived by Spouse or Descendants

o Decedent’s ___________________________ take the estate. o Each takes ___________________ of the estate. o If survived by only one parent, that parent takes entire estate.

3. Decedent NOT Survived by Spouse, Descendants, or Parents

Decedent’s ________________________ and descendants of any deceased siblings (decedent's nieces and nephews) will take the estate.

4. Decedent NOT Survived by Spouse, Descendants, Parents, Siblings, or Sibling’s Descendants

o Decedent’s estate is divided into_____________________________________ shares. o ½ goes to decedent’s paternal kindred o ½ goes to decedent’s maternal kindred

Example 5: Paternal side – If both grandparents survive, each takes ¼ of the decedent's estate. _____________________of the estate goes to the paternal grandfather and ______________________ to the paternal grandmother. If only one grandparent survives, that grandparent takes the entire ½ share. If there are no paternal grandparents, the ½ is divided among the surviving uncles and aunts and the descendants of any predeceased uncles or aunts (decedent’s cousins). Same distribution system applies to maternal kindred.

o If NOT survived by anyone on the paternal side, entire estate is distributed to maternal side (and vice-versa).

o If NO surviving paternal or maternal kindred – if decedent was _______________________, estate will be distributed to relatives of last deceased spouse (in-laws).

Example 6: A widowed decedent's stepchild may inherit through intestacy if the decedent had no relatives of his own to inherit.

5. Decedent NOT Survived by Any of the Above Persons

Estate ___________________________________________ to the state of Florida

Note 1: Please review the intestacy examples in the outline.

E. Adoption

• Adopted person – treated as descendant of adoptive parents, entitled to inherit from them.

o Adoptive parent may inherit from and through adopted person.

• General rule: adopted person loses all rights to inherit from or through ____________________ __________________.


o Exceptions:

_________________________ adopts the child – child can still inherit through married birth parent;

Widowed parent ______________________ and new spouse _____________________ the child – child can still inherit from deceased parent’s family; or

Example 7: Fred and Molly have a child, Charles. Fred dies and Molly marries Harry. Harry then adopts Charles. If Fred’s mother dies, Charles is still entitled to a share of his grandmother’s estate because Harry married Molly and adopted Charles after Fred’s death. However - If Molly had married Harry before Fred’s death, Charles would NOT have been entitled to inherit from Fred’s mother (his grandmother).

Note 2: Under THE Florida probate code, this exception applies ONLY when the natural parent remarries and the stepparent adopts the child AFTER the death of the other parent.

Both parents die and a sibling, grandparent, great grandparent, aunt or uncle adopt the child – child still has all rights to inherit as descendant of birth parents.

• Equitable or virtual adoption:

o Person promised to adopt the child, allowed the child to live with her, treated the child as adopted, but died before adoption – child _______________________________ inherit.

o Must provide clear and convincing evidence o Does NOT block child’s right to inherit through birth parents

F. Children Born Out of Wedlock (Non-marital Children)

• Can inherit from birth mother • Must prove paternity to inherit from purported father – three ways:

o Natural parents participate in marriage ceremony (even if marriage was void); o Paternity established in _________________________________; or o Father ________________________________________________ paternity in writing.

• Rebuttable presumption – child born in wedlock is child of mother’s husband.

G. Child Born After Death of Decedent

• Can inherit from decedent if “after-born” heir • Person conceived before decedent’s death but born after decedent’s death

H. Relatives of the Half-Blood

• Relative with only one common parent or grandparent • Only collateral relatives can be half-bloods • When intestate decedent dies with both whole-blood and half-blood heirs:


o Half-blood heirs take _______________________________ as much as whole-blood heirs.

Exam Tip 1: When distributing an intestate estate between whole-blood and half-blood heirs, allot 2 shares for each whole-blood and one share for each half-blood.

I. Survival Requirements

• Two or more persons die under circumstances where it is difficult to determine who died first • Florida applies the Uniform _________________________________________________ Act. • If decedent and beneficiary die simultaneously, decedent’s estate is distributed as if beneficiary

______________________________________ the decedent.

o Same rule applies for distribution of insurance proceeds to beneficiary o Also applies to property held as joint tenancy with right of survivorship or tenancy by

entirety - in effect, distributed as if a tenancy in common

• Florida only requires that a person survive the decedent if only for a second.

o Survivorship must be proven by a _______________________________________________.

Example 8: Husband and Wife die in an accident. Their death certificates reflect the same time of death, as if they died simultaneously. If a witness from the accident scene testifies that Husband was dead but Wife had shown some signs of life, the witness's testimony could overcome the presumption of simultaneous death.

J. Advancements

• Affects the heir’s share • Occurs when an intestate decedent (while alive) distributes property to an heir as an early part

of the heir’s inheritance • __________________________________ is required. • Value of the advancement is added to the value of decedent’s estate – heir’s share is decreased

by the advancement.

Example 9: Father, who is widowed, has two children, Alice and Ben. Father gives Ben $40,000 as an advancement. Father dies intestate shortly thereafter, with a probate estate worth $100,000. When distributing Father's estate, Ben's $40,000 advancement would be added to Father's $100,000 probate estate, totaling $140,000. Alice would receive 1/2, which is $70,000. Ben's $70,000 is reduced by the amount he received as an advancement ($40,000).


CHAPTER 2: EXECUTION OF WILLS

A. Formalities

Testator must strictly comply with several formalities when executing a will.

1. Writing

o Will MUST be in _____________________________________________________. o May be typed or handwritten

Handwritten will that meets all execution requirements (including witnesses) is _____________________________________________________ in Florida.

• If it does not comply with all requirements, called holographic will – NOT valid in Florida.

2. Testator’s _________________________________________________________

o Either:

Testator actually signs the will; or Another person signs the testator’s name at the testator’s direction and in the testator’s

presence (a proxy).

o Signature must appear at the end of the will - after the dispositive provisions of the will. o Full name is NOT required as signature.

Can be any mark adopted as signature

o Testator must either:

Sign in the presence of witnesses; or Sign the will beforehand and later acknowledge his signature on the will in the presence

of witnesses.

3. Witnesses

o Florida requires at least __________________________________ witnesses to a will. o Must witness actual signing of will or acknowledgment of previous signature by testator or

proxy o Must sign the will in the presence of the testator AND in the presence of each other. o Witnesses may sign anywhere on the will. o Any competent person may witness a testator’s signature on a will – even if the witness is a

_____________________________________________ to the will. o “Presence” standard:

Some jurisdictions – scope of vision/line of vision standard: each person must be capable of seeing the other.


Other jurisdictions – conscious presence standard: each party must be conscious of where the others were and what they were doing during will execution.

Florida has NOT established which standard applies.

Exam Tip 2: Follow the stricter scope-of-vision standard to ensure compliance with the presence requirement. However, be prepared to discuss both standards on the exam.

4. Testamentary Intent

o Testator must _______________________________________ the document to be his will. o ________________________________________________ intent is required. o Must intend the document to serve as a will

B. Codicils

• Must be executed with same formalities as a will • Codicil is an ____________________________________________________ to a will.

C. Self-Proving Affidavit

• Sworn testimony that the execution of the will complied with the required formalities. • Requires notarized signatures of ________________________ and _______________________ • May be signed at the same time the will is executed OR any time after • NOT required for validity of will – establishes prima facie the formal execution and attestation of

the will

D. Non-Probate Assets

Testator’s will ____________________________________ dispose of non-probate assets.

Example 10: A vacant lot owned by Tommy Testator with his friend, Fred, as joint tenants with right of survivorship will pass to Fred upon Tommy’s death. The vacant lot is not a probate asset of the decedent.

Example 11: If Tina Testator opens a bank account and names her niece, Nancy, as the beneficiary of the account, then upon Tina’s death, the funds in the account will be distributed to Nancy automatically.

CHAPTER 3: REVOCATION

A. Revocation by _________________________________________________________

• Testator may wholly or partially revoke a will or codicil by expressly stating so in any document written AFTER the will or codicil was executed.

o Subsequent document must be executed with same formalities as a will.

• Testator must have _______________________________________ as required for a valid will.


• Revoking document can be:

o Another will; o A ______________________________; or o Just a document that revokes the earlier will or codicil.

• Most wills contain a clause revoking all prior wills and codicils - ____________________ _________________________ clause.

• Revocation by subsequent will or codicil with terms that are inconsistent with the terms in the prior will or codicil

Example 12: Tammy Testator executes a will devising her pearl necklace to her cousin, Carly. Tammy now wants to devise her pearl necklace to her friend, Francine. If Tammy subsequently executes a codicil stating that she devises her pearl necklace to Francine, Francine will receive the necklace even though the subsequent codicil did not expressly state that Tammy was revoking the devise to Carly. The later inconsistent term governs the distribution of the devise in Tammy’s will.

B. Revocation by ___________________________________________________________

• Acts that may cause a revocation include: tearing, defacing, _______________________, or otherwise destroying the will.

• Florida _______________________ permit partial revocation of a will or codicil by physical act. • Requires physical act AND intent to revoke the will or codicil • Will that was in testator’s possession cannot be found or is found torn or otherwise destroyed:

o _________________________ that testator physically destroyed the will with the intent to revoke it.

May be rebutted with evidence that the will was accidentally destroyed or someone took the will without testator’s permission

C. Operation of Law

1. Subsequent Marriage

o Testator marries after executing a will and dies without having amended the will – surviving spouse is deemed to be a __________________________________________ spouse.

o Pretermitted spouse will receive intestate share.

Example 13: Henry, a widower, executes a will devising $10,000 to his nephew, Ned, and the rest of his estate to his only child, Dorothy. Henry then marries Sophie. Henry later dies without having made any changes to his will. Because Henry married Sophie after execution of his will and died without amending his will, Sophie is pretermitted. Even though Henry died testate, Sophie will receive a share equal to the share she would have received if Henry had died intestate. In this case, Sophie would have received 1/2 of the estate. The will is still valid.


Once the 1/2 is distributed to Sophie, Ned would get $10,000 and Dorothy will take the rest.

o Exceptions:

Surviving spouse may _________________ rights to pretermitted share in a valid pre- or post-nuptial agreement.

Surviving spouse will NOT receive pretermitted share if the spouse was provided for in the will in _______________________________________________________________.

Example 14: Maria, a single childless woman, is engaged to Tony. Before marrying Tony, she executes a will devising $10,000 to Tony and the remainder of her estate to her parents. Maria dies without having amended her will. Her probate estate is worth $200,000. Because Tony was provided for in the will and Maria and he were contemplating marriage, Tony will not be treated as a pretermitted spouse. Tony will only receive the $10,000 devise in the will.

Surviving spouse will NOT be treated as pretermitted spouse if decedent’s will expressly or impliedly discloses ____________________________ NOT to provide for the spouse.

Example 15: While Hank and Wendy are engaged, Hank executes a will that states, “I do not devise anything to my future spouse, Wendy, because she is independently wealthy.” Although Hank married Wendy after execution of the will, Wendy would not be treated as a pretermitted spouse because Hank expressly stated that he was not providing for her in his will.

2. Divorce or Annulment

o Ex-spouse is treated as if she predeceased the testator. o Any provisions in favor of the ex-spouse are generally ___________________________.

Example 16: If Wilma executed a will devising 3/4 of her estate to her husband, Hal, and 1/4 to Hal's son, her stepson, upon divorce the devise to Hal will be voided but NOT the devise to her stepson.

o ___________________________________ of the parties does not revalidate the provisions voided by the dissolution or annulment.

3. Children Born or Adopted after Execution of Will

o Pretermitted child receives an intestate share. o Exceptions:

A child will NOT receive a pretermitted child’s share:

• If child had received share as an _____________________________________; • If parent’s will discloses an intent NOT to provide for the child; or


• If testator had at least one other child at the time of execution of the will and the testator left ______________________________________ of the estate to the other surviving parent of the pretermitted child.

Example 17: Frank and Wendy have a child, Sally. A year after Sally’s birth, Frank executed a will leaving his entire estate to Wendy. The next year the couple has another child, Lester. Frank then dies without having amended his will to include Lester. Because Frank already had a child, Sally, when he executed the will and because Frank devised substantially all of his estate (100%) to Lester’s mother, Lester will not receive a pretermitted child’s share.

Exam Tip 3: If the will includes a devise to “all my children,” this is a class gift and, thus, for these purposes, children born or adopted after the will was executed are included in the will. Keep in mind that only those children who survive the decedent will be entitled to take from the decedent’s estate.

D. Revocation of Codicils

• Revocation of a will revokes ________________________________ to that will. • Revocation of a codicil does NOT revoke the underlying will.

E. Revival

• Florida is an anti-revival state.

Example 18: A testator who revoked Will #1 by an express provision in Will #2 cannot revive Will #1 by revoking Will #2.

1. Re-execution

Testator may re-execute the first will with the formalities required for will execution.

2. Republication by Codicil

Testator may execute a codicil which expressly refers to the first will – will effectively republish the terms of the first will.

3. Dependent Relative Revocation (DRR)

o Often occurs when testator revoked a will by ______________________________________, causing testator to die intestate

o Requires evidence that testator would have preferred to die testate

Show testator would have preferred the destroyed will rather than intestacy

o Requires testamentary scheme and that the decedent’s wills were _____________________ _______________________

o Applying DRR avoids intestacy o Last valid will that was destroyed is treated as if NOT intentionally revoked o Generally applicable in two situations:


Example 19: Tim validly executes Will #1. Tim then validly executes Will #2, which expressly revokes Will #1. The only difference between Will #1 and Will #2 is that the second will includes a provision leaving Tim’s laptop to a friend. Tim then destroys Will #2, thinking he can revalidate Will #1. However, because Florida is an anti-revival state, Will #1 cannot be revalidated in this manner. Therefore, absent DRR, Tim would die intestate. However, if DRR is applied, Will #2 (the last validly executed will) may be admitted to probate because Tim had a testamentary scheme (he wanted to die testate) and both wills were substantially similar.

Example 20: Terry validly executes Will #1. Terry then executes Will #2. The only difference between Will #1 and Will #2 is that the second will includes a provision leaving Terry’s camera to a friend. Terry immediately destroys Will #1 thinking that Will #2 is valid. However, Will #2 is invalid because there was only one witness. Therefore, absent DRR, Terry would die intestate. However, if DRR is applied, Will #1 (the last validly executed will) may be admitted to probate because Terry had a testamentary scheme (she wanted to die testate) and both wills were substantially similar.

CHAPTER 4: CONSTRUCTION OF WILLS

A. Classification System

• __________________________ – gift in a will of real or personal property. • ____________________________ – person designated in will to receive a devise.

1. ____________________________________ Devise

o Gift by will of property particularly designated o Satisfied only by beneficiary’s receipt of the particular item

Example 21: “My Trek mountain bike.”

2. ___________________________________ Devise

o Devise of fixed amount of money or other property o Payable from a particular fund or from the sale proceeds of a particular item o If fund or item are no longer part of the estate or insufficient to pay the devise:

Devise will be satisfied out of the _________________________________ of the estate.

Example 22: Tina’s will devises $5,000.00 to her cousin, Charles, to be paid out of the proceeds of the sale of her Acme Corporation stock. Even if Tina dies without owning any Acme stock from which to satisfy the gift to Charles, Charles will still be entitled to the $5,000 to be paid from the general assets of Tina’s estate because the gift is a demonstrative devise.


3. ________________________________________ Devise

May be satisfied out of the general assets of the estate

Example 23: “$1,000 to my nephew, Ned.”

4. _________________________________ Devise

Composed of all estate assets remaining after all other devises have been satisfied and all claims and costs have been paid

B. Incorporation by Reference

• Testator may incorporate into a will another document, lists, or events by referring to them in the will.

• Limitation: disposition of tangible personal property by separate writing

o Testator ____________________________________________________ dispose of tangible personal property in separate writing if item is specifically devised in the will.

C. Lapse

1. General Rule

If a devisee ______________________ the testator or is treated as having predeceased the testator, the gift ________________.

2. Anti-Lapse Statute

o Florida has an anti-lapse statute applicable to a certain class of devisees. o Applies if the devisee is:

Testator’s _______________________________________; or Descendant of testator’s grandparent.

o Devise is distributed to the devisee’s descendants, per stirpes. o Includes testator's parents, children, grandchildren, aunts, uncles, and cousins o Default provision that applies unless the will shows contrary intent, such as:

Naming a substitute taker; or Including words of _____________________.

3. Class Gift Rule

o If devisee is grandparent or descendant of grandparent, anti-lapse applies to the class gift. o Devise is given to the devisee’s descendants, per stirpes.

Example 24: Tammy Testator executes a will, devising $10,000 to her choral group. The group was made up of 4 friends and her cousin Cindy. If one of the friends predeceases Tammy, the remaining 3 friends and Cindy share the devise. By contrast, if Cindy predeceases Tammy, because Cindy is a descendant of


Tammy’s grandparent, Cindy’s share will be distributed to Cindy’s descendants, if any, per stirpes, rather than to the remaining members of the choral group.

4. Devise Lapses

o Cannot be saved by anti-lapse o Specific, demonstrative, or general devise – becomes part of ________________________.

5. Residuary Lapses

o Residuary devisee predeceases or treated as having predeceased – if residuary is devised to more than one devisee, remaining surviving devisees take in their proportionate share.

o If residuary devisee is testator’s grandparent or descendant of grandparent – anti-lapse rule _________________________ to the devisee’s share of the residuary.

Exam Tip 4: If the residuary devise lapses, then it will be distributed through intestacy.

D. Abatement

1. In General

o Devise may be reduced to pay claims against the estate, costs of administration, statutory shares, and other devises in the will.

o Reduction is known as _______________________________________________. o Order of abatement is a default rule (can be changed by testator).

2. Order of Abatement

Property abates in the following order:

o _______________________________________________________ property o ______________________________________________________ devises o General devises o Specific and demonstrative devises

E. Ademption by Extinction

• Applies ONLY to ________________________________________________ devises • Rule: If, at the time of the testator’s death, specifically devised property is NOT part of the

testator’s estate, the gift adeems (fails).

Example 25: Tom Testator executes a will devising “my 5 antique cars” to Alan. If Tom dies owning the 5 cars, then Alan receives the entire collection. If Tom had sold 3 cars before his death, the specific devise partially adeemed by those cars, and Alan would receive only the remaining 2 cars. If Tom had no cars upon his death, then the entire specific devise adeems.


• Florida’s Non-Ademption Statute:

o If property has adeemed, a specific devisee has the right to any remaining specifically devised property and the following:

Any balance of the _______________________________________________ and any security interest unpaid at the testator’s death by a purchaser of the property;

Any amount of a condemnation award for the taking of property, unpaid at testator’s death;

Any proceeds unpaid from ______________ or casualty insurance on the property; AND Property owned by the testator at death as a result of foreclosure, or obtained instead

of foreclosure, of the security for the specifically devised obligation.

Example 26: Terry Testator specifically devises a second home she owns to her sister, Sara. Before Terry dies, she sells the property to Pat. Pat, however, does not have enough funds to fully pay Terry. Terry agrees that Pat will pay Terry $1,000 a month until payment in full. Pat gives Terry a promissory note and a mortgage on the property as collateral. Terry dies without having received full payment from Pat. Terry no longer owned the second home, so the specific devise to Sara adeemed. However, pursuant to the non-ademption statute, Sara is entitled to the remaining payments owed by Pat and the mortgage on the property.

o Non-ademption statute applies to specifically devised property held by a guardian of the testator's property

Specific devisee will be entitled to a general pecuniary devise amounting to the net sale price, condemnation award, or insurance proceeds.

• Amount is NOT limited to the amount unpaid at the testator's death.

Non-ademption statute will NOT apply if after the sale, condemnation, or casualty, it is adjudicated that the testator's disability ceased and the testator survived the adjudication by ______________________________.

o If the non-ademption statute does not specifically address a situation:

Devisee may argue for non-ademption by introducing evidence reflecting that the testator had no intent of disinheriting the devisee and the specific devise is traceable to existing assets of the decedent.

Example 27: Tammy Testator executed a will specifically devising her diamond ring to her granddaughter, Gina. However, before her death one month ago, Tammy sold the ring for $3,000.00, put the money in an envelope, and stored it in her nightstand. Because Tammy no longer owned the ring at her death, the specific devise to Gina will adeem. However, to prevent ademption, Gina may


introduce evidence that Tammy intended her to receive the $3,000 that is traceable to the sale of the ring.

F. Ademption by Satisfaction

• Occurs when a devise in a will is to be reduced by the value of an _________________________ from testator to beneficiary after execution of the will.

• ____________________________ is required. • Devise is reduced only if:

o Will provides for reduction; o Testator acknowledges his intent in contemporaneous writing; or o Devisee acknowledges in writing that he accepts gift in full or partial satisfaction of his

devise.

• Applies to ALL types of devises

G. Securities

• Florida also has a non-ademption statute that applies to specific devises of securities. • Also addresses an increase in securities that benefits a specific devisee (accession)

Example 28: Tony Testator executes a will with a specific devise of his 100 shares of Acme Corporation stock to Donna. Before Tony dies, Acme Corporation declares a 2 for 1 stock split – Acme’s actions convert each share of Tony’s stock to 2 shares. Therefore, Tony now owns 200 shares of Acme stock. Is Donna entitled to Tony’s 200 shares of Acme stock or will she only receive the 100 shares mentioned in Tony’s will? Because Tony specifically devised the shares to Donna, Donna gets the benefit of the stock split and receives the 200 shares under Florida’s securities accession rules.

CHAPTER 5: THE ELECTIVE SHARE

A. In General

• Share that surviving spouse is entitled to demand if unhappy with what she is receiving from the decedent’s estate (either through intestacy or will).

• May take elective share in addition to the right to homestead, exempt property, and family allowance

B. Procedure and Timing for Election

• Must file petition with the court • Petition must be filed within the earlier of:

o __________________________________ after service of notice of administration; or o ___________________________________ after decedent’s death.


• Spouse can withdraw petition • Elective share petition may be filed by:

o The surviving spouse; o The spouse’s attorney-in-fact; OR o The __________________________________________ of the surviving spouse's property.

IF attorney-in-fact or guardian files the petition, court must determine whether the election is in the spouse's best interests.

C. Amount of the Share

• _________________% of the elective estate • Elective estate includes:

o Decedent’s ____________________________ estate; o Accounts or securities in “Pay on Death” accounts and decedent’s interest in accounts held

in right of _____________________________________; o Other property held in right of survivorship;

Example 29: Husband and his 2 brothers own investment land as joint tenants with the right of survivorship. Husband dies, survived by his 2 brothers and his Wife. Because there were 3 co-tenants, 1/3 of the value of the land at Husband’s death is included in the elective estate.

Example 30: Husband and Wife owned a vacation house as tenants by the entirety. Husband’s ½ interest in the tenancy by the entirety is included in the elective estate.

o Property in a _________________________________________________ trust;

Example 31: Husband creates a revocable trust, providing for the income to go to Husband for life, remainder in fee to Husband’s child, Charles. Husband dies without having revoked the trust, survived by Wife and Charles. The entire value of the revocable trust at Husband’s death is included in the elective estate.

o Property held in a _________________________________________________ trust for the settlor, or a trust where the decedent had the right to income or principal;

o Cash surrender value of insurance policies on the decedent’s life; o ________________________________________________ payable under retirement plans; o Certain transfers within one year of the decedent’s death; and o Property transferred in satisfaction of the elective share.

• Excluded assets:

o Irrevocable transfers made by decedent before ______________ or before October 1, 1999 o Irrevocable transfers made with the spouse’s ____________________ o Decedent’s homestead property


• Value of assets - fair market value minus claims, mortgages, liens, and security interests against the property.

D. Satisfaction of the Elective Share

In the absence of any provision in the will, the elective share is satisfied as follows:

• Property passing to the surviving spouse

o Includes:

Any _____________________________________ to the spouse in the decedent’s will; Any share the spouse takes by intestacy; Life insurance policies payable to the spouse; ________________________________________________ payable to the spouse; and The value of property spouse is getting by right of survivorship or otherwise.

• Any balance is satisfied from the decedent’s estate or revocable trusts.

E. Waiver of Right to Election

• Surviving spouse may waive the right to the elective share either before or after marriage by written contract, agreement, or waiver:

o Signed by the spouse; and o In the presence of _____________________ subscribing witnesses.

CHAPTER 6: HOMESTEAD, EXEMPT PROPERTY, AND FAMILY ALLOWANCE

A. Homestead

Exam Tip 5: Homestead is often tested on the Florida bar.

1. In General

o Protects homeowner or homeowner’s family from a ________________________________ of the homestead property by certain creditors

o Protects family from owner’s attempted transfers or disinheritance

2. Homestead Property

o Applies to real property

May be held in ________________________________________ or lesser estate

o Covers only a limited number of acres

Within a municipality: _____________________________ acre Outside a municipality: ____________________________ acres of contiguous land

o Property must be owned by a ____________________________________________. o Must be primary residence of owner or family


o Homestead protection:

Within a municipality: limited to only the __________________________________ Outside a municipality: extends not only to the residence but other buildings on the

property (garages, barns, stables, etc.)

3. Exemption from Forced Sale

o Creditors cannot force the sale of the homestead. o Exception -Three types of debts CAN be enforced by sale of the homestead property:

_________________________________________ and assessments on the homestead; Debts for the purchase or improvement of the homestead (mortgage loans or

construction loans); and _____________________________________________ liens.

o Florida – allows homestead protection to transfer (inure) to a _______________________________ or _________________________________________.

Example 32: Mark, an owner of homestead, died single and childless. When Mark died, he left behind significant debt on his credit cards. Mark’s will devised his homestead to his friend, Sandy. Upon Mark’s death, can the creditor card companies force the sale of the house to pay Mark’s debt? Did Mark’s protection from forced sale inure to Sandy? ________________________________________________________________.

4. Restrictions on Alienating Homestead Property

o During lifetime – unmarried owner of homestead property ______________________ alienate the homestead by mortgage, sale, or gift.

o Married owner – ______________________________________ transfer (sell, mortgage, or gift) the homestead without the spouse’s joinder (consent).

Exception: Married owner may execute deed to add spouse as tenant by entirety.

5. Restrictions on Ability to Devise Homestead Property

o If owner is survived by _____________________________________________, homestead cannot be devised at owner’s death.

o If owner is not survived by a minor child but is survived by ___________________________, the only valid devise of the homestead is to that spouse.

o Owner not survived by minor child or spouse – can devise homestead to _______________.

6. Descent of Homestead Property

o Owner dies intestate or attempts invalid devise of the homestead - would descend by intestacy unless:

Owner is survived by spouse AND descendant(s):


• Surviving spouse gets __________________________________________. • Descendant(s) get a vested remainder.

o If spouse gets life estate and descendant(s) get vested remainder, spouse can choose to take ½ as a tenant in common – other ½ will go to descendant(s) per stirpes.

Example 33: Husband and Wife have one minor child. Homestead is in husband’s name only. Husband dies survived by Wife and their minor child. Husband’s will devises the homestead to Wife. This devise is invalid – if owner is survived by minor child, cannot devise homestead. Therefore, Wife gets a life estate and the minor child gets a vested remainder.

Example 34: Husband and Wife have an adult daughter. Homestead is in husband’s name only. Husband dies survived by Wife and their adult daughter. Husband’s will devises the homestead to Wife. Is this a valid devise? ________________________________________________________________.

7. Spousal Waiver of Homestead Rights

May waive rights, wholly or partly, in a valid pre- or postnuptial agreement

B. Exempt Property

• Florida Constitution exempts forced sale of $________________________ of personal property. • Statutory exemption:

o Provides protection against creditors for certain types of tangible personal property o Protects against claims of creditors, except those holding perfected security interest

• Exempt property:

o Household furniture, furnishings, and appliances – up to $______________________; o Two cars in decedent’s name (not used in trade or business); o All college prepaid tuition plans; and o ____________________________ for a child that is a dependent of a teacher killed on duty.

• Surviving spouse gets exempt property – if none, then decedent’s children. • Property will NOT be exempt if already specifically or demonstratively devised in will.

o If specifically (or demonstratively) devised to the spouse or if specifically (or demonstratively) devised to owner's children if no spouse, the spouse or children could ask the court to declare it exempt from claims.

C. Family Allowance

• Paid to surviving spouse and dependent lineal heirs (both descendants and ascendants) • Amount: cannot exceed $____________________________________________ in total.


CHAPTER 7: BARS TO SUCCESSION

A. Homicide

• Person who unlawfully and _____________________________ kills or participates in procuring the death of the decedent – prevented from taking as a beneficiary of decedent’s estate.

• Killer is treated as having _____________________________________________ the decedent. • Joint tenant or beneficiary of life insurance policy who kills the decedent cannot benefit from

his actions.

Example 35: Adam and Ben own land as joint tenants with right of survivorship. If Adam unlawfully and intentionally kills Ben, Adam will not take Ben’s share as the survivor. Instead, the tenancy will be severed – Adam will retain ½, but Ben’s share will pass to his estate.

• If found guilty of murder - final judgment is conclusive for purposes of barring the killer from benefitting from his acts.

• If no charges brought or NOT convicted of murder: probate court may make its own determination based on the greater weight of the evidence regarding forfeiture.

o Lower standard of proof than in criminal case

• Affects killer’s rights only – killer’s descendants may be able to take:

o By _______________________________________________________; or o By application of the ________________________________________________ statute.

Example 36: Gerald has two children, Dan and Ellen, who each have one child. If Dan unlawfully and intentionally kills his father, Dan will be treated as having predeceased Gerald and will not be entitled to receive a share of Gerald’s estate. Instead, Ellen will receive ½ and Dan’s child will receive the other ½.

B. Spousal Rights Procured by Fraud, Duress, or Undue Influence

• NOT entitled to benefits • Spouse treated as having predeceased the decedent. • Spouse is not barred from obtaining spousal rights if:

o Decedent voluntarily cohabited with the spouse with _______________________________ of the facts; or

o Spouses otherwise _______________________________ the marriage.

C. Bigamy

• Spouse who enters a bigamous marriage is estopped from taking intestate share of first spouse’s estate.

D. Disclaimer

• Beneficiary voluntarily gives up rights to estate.


• Treated as having predeceased the decedent • Disclaimed property is distributed to other heirs by intestacy or to the next eligible taker under

the will. • ____________________________________ statute might apply. • Cannot be used to avoid creditors or a federal tax lien

CHAPTER 8: WILL CONTESTS

A. Burden of Proof

• Initial burden is on the ___________________________________ of the will.

o Generally the personal representative o Must prove formal execution and attestation

• Burden shifts to ___________________________________.

o Must prove why will should NOT be admitted to probate o ANY _____________________________________ person can contest

B. Lack of Testamentary Capacity

1. Execution or Revocation of a Will or Codicil

o Any person _________ years or older or any emancipated minor who possesses sound mind may execute or revoke a will or codicil.

o Emancipation – through marriage or court decree.

2. General Testamentary Capacity

o At the time of execution of a will or codicil, testator must generally understand the following:

__________________________________________ of his property; __________________________________________ of his bounty (persons who would

typically be expected to receive a part of the estate); and Effect of the disposition of his property as specified in his will or codicil.

o Determined solely by testator’s mental state at the time of execution of the will o Lack of testamentary capacity – entire will is voided.

3. Burden

o Testator is ________________________________ to have possessed testamentary capacity. o Burden is on person challenging the will. o Testator declared mentally incompetent by a court before execution – presumed to LACK

testamentary capacity.

Burden is on the proponent to prove testamentary capacity at the time of execution.


o All relevant evidence is considered by the court - evidence of the testator's mental state both before AND after the execution of the will is relevant.

C. Insane Delusion

Exam Tip 6: Do not confuse lack of testamentary capacity with an insane delusion. Although similar evidence may prove both, a finding of lack of testamentary capacity voids an entire will; a finding of insane delusion may void an entire will or only a portion of the will.

• An ________________________ or unfounded belief to which the testator adheres against all evidence and reason

Example 37: Tessa Testator had only one child, Diane. Tessa executed a will devising all her property to her niece, Nancy, rather than to Diane. Tessa insisted that Diane had not visited her in 5 years. In fact, Diane visited Tessa on a monthly basis. Although Tessa may have testamentary capacity, Diane could seek to void the will, asserting that Tessa suffered from an insane delusion that caused her to devise her property to Nancy rather than Diane.

D. Undue Influence

1. In General

o Will procured by undue influence - _________________________________ is voided. o Provision in a will is procured by undue influence - the ______________________ is voided. o Acts that amount to persuasion or _______________________________________________

to such a degree that the testator’s free will is destroyed o Decided on a case-by-case basis o Usually proven through direct evidence

2. Elements

Contestant has the burden of proving the following three elements:

o Influence was ___________________________________________ on the testator; o Effect of the influence was to overpower the testator’s free will; and o The influence was the ______________________ cause of the will or provisions in the will.

3. Presumption

o Florida permits a contestant to raise a presumption of undue influence. o Contestant must establish three elements:

Procurer is a substantial beneficiary under the will; Beneficiary was in a ____________________________________ with the testator; AND Beneficiary was active in procuring the will or a provision in the will.


o “Substantial beneficiary” – person who receives much more than she would have received in intestacy, under prior will, or more than others in the same degree of relationship to the testator.

o “Confidential relationship” – any relationship in which the testator places trust in another person.

Existence of family relationship does NOT mean that a confidential relationship exists. Confidential relationship between spouses – NOT recognized in Florida for purposes of

raising a presumption of undue influence.

• Must show direct evidence

o “Active procurement” – court looks to factors including:

Beneficiary’s presence at time of execution; Beneficiary’s presence when testator expressed desire to make a will; Beneficiary’s recommendation of an ____________________________ to draft the will; Beneficiary’s knowledge of the contents of the will before execution; Beneficiary’s _____________________________ to attorney on how to prepare the will; Beneficiary’s securing of the ____________________________________ to the will; and Beneficiary’s safekeeping the will after execution.

o Once presumption is raised – burden of proof shifts to ______________________________.

Must disprove undue influence by a preponderance of the evidence

Note 3: A devise to a lawyer or a person related to the lawyer is VOID if the lawyer prepared the will, supervised the execution of the will, or solicited the devise, unless the lawyer or person related to the lawyer is also related to the testator.

E. Duress

• Threat of ___________________________________________ or coercion against the testator • Will executed under duress – entire will is voided. • Provision of will obtained by duress – provision is voided.

F. Fraud

• Both in the execution and inducement • Fraud in the execution: someone purposefully switches or changes a document for the testator

to sign without the testator’s knowledge.

o Will is voided.

• Fraud in the inducement: someone lies to the decedent so that the decedent will leave that person a devise.

o Might not be voided o Remedy of a constructive trust or reformation of a will


G. Mistake

• Mistake in the execution ____________________________________________ a will.

Example 38: Testator signed a will in which the pages were mistakenly switched with the spouse's will.

• Mistake in inducement – testator executes will based on mistaken belief in fact. • Mistake in drafting (scrivener's error) – may lead to an __________________________ in a will.

o Latent (not ascertainable from reading the will) or patent (obvious from the face of the will) o Court must determine testator’s intent in interpreting an ambiguity.

• A will is generally NOT voided for mistake in inducement or scrivener’s error.

o Court may reform a will to correct the mistake. o Reformation requires clear and convincing evidence of the testator’s intent.

H. No-Contest Clauses

Unenforceable in Florida

CHAPTER 9: PROBATE AND ADMINISTRATION AND POWERS OF APPOINTMENT

A. Probate and Administration

1. Personal Representative

o Person that administers decedent’s estate upon decedent’s death o Must first pay creditor’s claims and debts of the estate o Required to publish a ___________________________________________ in the newspaper

Must also serve a copy of the notice to all known and reasonably ascertainable creditors

• These creditors have _________________ days after receipt of notice to file claims.

Unknown creditors - 3 months to place a claim

2. Order of Preference for Appointment of Personal Representative

o Testate:

Appointment in will governs If will is silent or person appointed is dead or does not want to serve: Majority in

interest of devisees decide Any devisee may petition to be personal representative

o Intestate:

____________________ Majority in interest of heirs make decision


Heir in the nearest degree may be appointed

3. Qualifications of Personal Representative

o Must be legally competent o Florida resident o CANNOT be:

_____________________________________________________ Physically or mentally unable ________________________________________________________

o Non-residents can serve as personal representative if one of the following:

_____________________________________________ or adoptive parent of decedent; Related by lineally consanguinity to the decedent; Spouse, brother, sister, uncle, aunt, nephew, niece, or related by lineal consanguinity to

any such person; and Spouse of any of those persons.

o Entities may serve as personal representative (e.g., trust company, bank, or savings and loan institution).

4. Ancillary Administration

o Administration of an estate in a jurisdiction other than where decedent is _______________ o Florida resident has real estate in another state – ancillary administration is done in that

state. o Resident of another state dies owning Florida real property – ancillary administration is

proper in Florida. o Venue – where the property is ________________________. o Rules of inheritance and distribution are the rules of the domiciliary jurisdiction (rules where

decedent resided).

Testator could provide otherwise in his will - i.e., specify that Florida rules apply

B. Powers of Appointment

1. Terminology

a. Parties

_______________: creates power of appointment _______________: holds power of appointment Objects of the power: eligible recipients Taker in default: obtain property if the power of appointment is not exercised by donee


b. Types of Powers

____________________________ power of appointment: allows holder to appoint anyone as recipient (including herself, her estate, or creditors).

____________________________ (special or limited) power of appointment: holder cannot appoint to herself, her estate, or creditors.

Power may be presently exercisable or only at the death of the donee (testamentary).

2. General Residuary Clause

o Does NOT exercise a power held by the testator o Florida requires: (i) specific reference to the power; or (ii) other indication of intent to

include property that is the subject of the power.

[END OF HANDOUT]

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