WIlls

Intestacy -
● Intestate estate
○ 3 ways to die intestate
■ Partially or wholly intestate due to invalidation
■ Never had a will
■ Previous will was revoked
● Spouse share
○ Was it a valid marriage
■ Marriage under fraud, duress
○ Separation
■ No effect unless property settlement agreement
○ Divorce
○ Type of share received
○ Same sex - obergefell

● Share of other heirs

○ Half- blood siblings
○ Inheritance per stirpes
○ Adopted children and children born out of wedlock
○ Debts to the decedent
○ Stepchildren

Disclaiming an interest
● Voluntary
● Slasher statute

Contesting a will (Standing)

● Anyone whose share would increase if contest is successful

Testate
● Who can make a will
○ Lucid moment
○ Sound mind (3) elements
■ Nature and extent of property
■ Knowing natural objects of testator’s bounty
■ General understanding of the practical effect
○ Insane delusion
● Will formalities
○ Holographic
○ Presence requirement
 ■ Conscious presence v. line of vision
● Fla. follows line of vision
● Self-proof will
○ What happens when you don’t self proof
● Remarriage to same person
○ If testate, does not reinstate, still treated as predeceased
● Witnesses
○ Interested v. Disinterested witness
■ Will contesting
● Revocations
○ By writing
○ By act
■ For paper
■ For electronic
○ Lost/Destroyed wills
■ Will is presumed to be revoked if it was found in mutilated state
■ Lost will be proven by clear and convincing + interested person
○ Dependent Relative Revocation
■ definition - where testator makes a new will revoking a former valid one,
and it later appears that the new one is invalid, the old will may be re-
established on the ground that the revocation was dependent on the
validity of the new one, testator preferring the old will to intestacy
■ Mistakenly believed another instrument was governing
■ Allows courts to disregard revocation that would not have occurred but for
the testator’s mistaken belief that another disposition of her property was
valid
● Courts apply DRR when undoing revocation comes closer to the
testator’s intent
○ By proxy
■ Must be done:
● 1) at the testator’s direction AND
● 2) in the testator’s presence
● Electronic wills
○ Self proof electronic will
● Republication
○ Clause added after will executed
● Revival by revocation
● Codicil
○ Republication by codicil
● Incorporation by reference
● Ambiguity
○ Latent - ambiguity is not apparent on the face of the document
○ Patent – ambiguity on the face of the document
Challenges to Will
● Effect of fraud, duress and undue influence
○ Undue influence presumption
■ Arises when principal beneficiary who stands in confidential relationship
to Testator (doctor/patient; lawyer/client, clergy etc), draws or procures
execution of will
■ Helped procure teh
● Tortious interference (if outside of probate)
○ Has four elements MUST prove
■ 1. The existence of an expectancy;
■ 2.Intentional interference with the expectancy through tortious
conduct;
■ 3. Causation; and
■ Damages
■
● Mistake
○ Court may reform will terms if a mistake is shown by clear and convincing
evidence
■ Extrinsic evidence is admissible to show testator’s true intentions even if it
contradicts the plain meaning of the will

Attorney
● Gifts for attorney
● Attorney not needed for will
○ But best practice
● Attorney liability for negligence
○ An attorney may be liable to beneficiaries harmed by his negligent preparation or
execution of a will EVEN THOUGH will beneficiaries and attorney are not in
privity of the contract

Foreign domiciliary with land in florida

● Primary v. ancillary administration
○ Primacy administration of a will, will take place where the decedent is domiciled
@ time of death BUT ancillary administration must take place anywhere
decedent owned property

Rules of Construction
● Simultaneous death law
● Antilapse
● Ademption by extinction
● Ademption by satisfaction (testacy)
 ○ Advancement (intestacy)
● Types of devises
○ Residuary
○ General – is one which may be satisfied out of the general assets of the
testator’s estate instead of from any specific fund, thing or things. It does not
consist thing or fund or part of the estate distinguished and set apart from others
of its kind and subject to precise identification. It has a prerequisite of designation
by quantity or amount. The gift may be either of money or other personal
property - in re estate of potter
○ Specific - A specific devise is a devise of a property which is particularly
designated and which is to be satisfied only by the receipt of the particular
property described. It can be of a specific item of property or of a specific type of
property –Parker v. Park
○ Demonstrative
● Abatement
○ Priority of creditors’ claims
■ Expenses of administration
■ Funeral expenses

Contractual Arrangements relating to death

● Waiver of spousal rights
● Effect of divorce
● Agreements concerning succession

Non-Probate assets (13)

● TBE property
● JT w/ RS Property
● Joint Bank Accounts
● POD/ITF bank accounts
● Life insurance proceeds
● Pensions & retirement benefits
● Annuities
● Inter vivos trusts
● Property subject to power of appointment
● Homestead
● Transfers before death
● Wrongful death claim
● Social security
Exempt Property (+ homestead)
● + home furnishings up to $20,000
● + 2 motor vehicles
● + family allowance $18,000
Pretermitted
● Spouse
● Child

Elective Estate
● Included in elective estate (10)
○ Probate estate
○ Interest in homestead
○ Ownership interest in POD, TOD, ITF
○ Fractional interest in property helped in JT w/ RS or TBE
○ Property transferred into revocable trust
○ 1)Any interest in property if decedent had either the right to or actual possession
or use of, the property’s principal or income 2) any interest in property if the
principal could be distributed or appointed to the decedent or for the decedent’s
benefit
■
○ Net cash surrender value of whole life insurance policy
○ Amount that beneficiary receives under public or private pension and retirement
plans
○ Two types of transfers made by the decedent within one year of death
○ Property transferred in satisfaction of elective share

Elective Share
● 30% of elective estate

Personal Representative
● Eligibility
● Whio cannot serve
● Duties
● Powers
● Intestacy personal representative
○ Priority of appointment

WILLS & TRUST

● Pour over clause
○ Clause in will leaving property to previously created trust

TRUSTS
● Elements
○ Capacity
○ Intent
 ○ Res
■ Type of recognized property interest
○ Definite beneficiary
● Express trust (revocable by default)
○ Inter vivos (private)
■ Definite
■ Charitable
● Standing (named bene orgs, attorney general otherwise)
● Cy pre

Revocable
■ Testamentary aspects
● Personal property
○ Oral or written
● Real property
○ SOF
■ Irrevocable
● Personal property
○ May be Oral trust or written
● Real property
○ SOF
○ Testamentary
■ will formalities

○ Spendthrift (provision)
■ Exception
■ Creditors allowed breach
■ Garnishment orders by court
■ Creditors allowed to breach
■
○ Uneconomic trust
■ Judicial or nonjudicial modification
■ Revocable or irrevocable

modification/termination
● Judicial
● Nonjudicial
● Charitable
● Uneconomic (judicial or nonjudicial)
○ Nonjudicial → less than $50,000’
○ Judicial →
● Charitable (special rules may apply)
 ● Trust failing
○ Lack of definite beneficiary
○ Merger doctrine (sole trustee and beneficiary are the same)
○ Invalid purpose
■ Illegal
■ Impossible to achieve
■ Against public policy
○ CANNOT Fail for lack of trustee

● Implied trust
○ Resulting
■ Regular resulting
● Semi secret trust
■ Purchase money
○ Constructive
■ Secret trust
● Honorary trust
○ For care of animals
○ Headstones
○ Court may appoint trust enforcer
○ If trust has excess corpus at termination, it is returned to settlor or settlor’s estate
if settlor is deceased.

Powers + Duties of Trustee

● Discretionary trust support
● Duties (LIPIA)
○ Loyalty
○ Invest prudently
○ Preserve and protect trust property
○ Impartiality
○ Account and inform
● Powers

Multiple trustee
● Act as a majority
Receipts + Expenditures
● Receipts
○ Trustee fee
 ● Income
○ Interested earned
○ Rental income
○ Dividend on stocks in cash
○ 10% of annuities
○ 10% of any mineral royalties
● Principal
○ Proceeds from sale of trust assets
○ Proceeds from stock split
○ Dividends on stocks paid in stock
● Expenditures
○ Income
■ Ordinary expenses (repairs, interest payments, income tax bills)
○ Principal
■ Extraordinary items
■ Capital improvements
■ Income tax payments on sale of property

Rules Against Perpetuities

● Four
○ 21 year common law
○ 90 year (statutory default)
■ Max allowed if settlor opts out of judicial modification in best interest of
beneficiaries
○ 360 year wait and see
○ 1000 wait and see (dynasty trusts)