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Wills & Trust 2007 Outline Wills & Trust Outline There is no true or absolute right to dispose of property at death. Rule of property disposition at death are governed by the Florida Statutes. RE: 732.5165 Mistakes -- Coslett v. Hirsch. “It is more important that the probate of the wills of dead people be effectively shielded from the attacks of a multitude of fictitious mistakes than that it be purged of wills containing a few real ones. The latter a testator may, by due care, avoid in his lifetime. Against the former he would be helpless.”” Florida has not fully adopted the UPC. Generally the federal government does not get involved in probate matters. • Probate exception allows for the federal government to be involved in certain circumstances • Military Testamentary document is a federal documented probated in the decedent’s state. When answering exam questions, analyze the question under both the UPC and Florida Statutes. WILLS §731.201(37) F.S.—Definition of a will—“Will” means an instrument, including a codicil, executed by a person in the manner prescribed by this code, which disposes of the person’s property on or after his or her death and includes an instrument which merely appoints a personal representative or revokes or revises another will. A will can do more than dispose of property, including • Appoint a personal representative, who manages the estate, and collection of property. • If the will does not name a personal representative, the court can appoint one. §731.201(25) F.S.—Definition of a personal representative—“Personal Representative” means the fiduciary appointed by the court to administer the estate and refers to what has been known as an administrator, administrator cum testamento annexo, administrator de bonis non, ancillary administrator, ancillary executor, or executor. Today, all property distributed by a will is called a devise. Previously, specific terminology was used to describe the type of property distributed. Legacy—money Bequest—other tangible or intangible property Devise—land Testator/Testatrix—person who makes a will Testate—dying with a will Intestate—dying without a will Heir – receive through intestacy 1 It is possible for a testator to die partial intestate. This occurs when the testator without fully devising all of his property, or if certain devises fail. Probate is the court process of disposing of the assets of a decedent. The court process is the method by which the title of probate assets is re-titled in the name of the beneficiaries. What are probate assets? • All assets solely owned by the decedent • Cash—as long as it belongs to the decedent o In an account, depends on how title is held • Property held by Tenants in Common • Stock is probated but the nature may change o Closely company with a shareholder agreement may prevent stock from getting to a beneficiary but the money paid for the stock will be probated • Intangible property o Copyrights, promissory note, legal claim, lawsuit • Real Estate if in Florida • Beneficiary interest in a trust may be part of the probate estate, but generally is not • Community Property—FL is NOT a community property state • Auto Insurance because the car would have been part of the estate • Life insurance benefits, IF o No beneficiary is named, or o If the insurance policy does not include a clause allowing the insurance company to name a beneficiary • Excludes homestead o Homestead property is NOT probated, but it still comes before the court • Excludes non-Florida real estate o Must do an ancillary administration in the state in which the property is located • Excludes joint tenancy with right of survivorship (JTWROS) • Excludes tenancy by the entireties (TBE) • Excludes pay on death account with a named beneficiary • Excludes life insurance benefits payable to a named beneficiary • Excludes property owned by the decedent as trustee The probate estate does not always equal the gross estate. Inventory is a sealed document that tells the court what assets the decedent had. Life Insurance may be probated depending on the design of the policy. • Probated if no beneficiary is named or if the policy does not include a clause allowing the insurance company to name the beneficiary • NOT probated if a beneficiary is named 2 INTESTACY §732.101(1)—Any part of the estate of a decedent not effectively disposed of by will passes to the decedent’s heirs as prescribed in the following sections of this code. When can you take property as an heir? Answer—§732.101(2)—The decedent’s death is the event that vests the heirs’ right to the decedent’s intestate property. The EASIEST way to declare/prove death is with a death certificate. §731.103 provides the methods for declaring death without a death certificate. • “9/11” type event exception is found in subsection 3 Lineal Descendants—children, grandchildren, etc.—never ending Lineal Ascendants—parents, grandparents, great-grandparents (not in Florida) Collateral heirs—side relative—brother, sister, aunt, uncle, niece, nephew, cousin, etc. Who gets what under intestacy? • ALWAYS START WITH THE WIFE Florida Law UPC Example: [H] + W H dies intestate with a $600K estate What does W get? §732.102(1)—W takes all because H had no UPC 2-102—entire intestate estate if H has no lineal descendants descendants and no parents Total: $600K Total: $600k Example: M ↓ [H] + W H dies intestate with a $600K estate What does W get? What does M get? §732.102(1)—wife takes all because Florida UPC 2-102(2)—wife gets first 200k plus ¾ of does not provide for parents any balance of the intestate estate, if no Total: $600K descendants of the decedents survive, but a parent of the decedent survives the decedent Here wife gets 200K + 300K Mom gets $100K Total: $500K to Wife, $100k to Mom 3 Florida Law UPC Example: [H] + W \ / C1 H dies intestate with a $600K estate What does W get? What does C1 get? §732.102(2)—If there are LDs of decedent, all 2-102(1)(ii)—Intestate share to surviving of whom are also LDs of the spouse, 1st $60K + spouse is the entire estate of all the decedent’s ½ the balance to the spouse LDs are also LDs of the surviving spouse and there is no other descendent of the surviving Here, $60K + $270K = $330K spouse who survives the decedent. Total: Wife gets $330K and C1 gets $270K Total: Wife gets $600K and C1 nothing Example: C2 − [H] + W \ / C1 H dies intestate with a $600K estate What does W get? What does C1 get? What does C2 get? §732.102(3)—If there are surviving LDs, 1 or 2-102(4) surviving spouse gets the 1st $100K + more of whom are not LDs of the surviving ½ of any balance of the intestate estate, if one or spouse, ½ of intestate estate to surviving spouse more of the decedent’s surviving LDs are not LDs of surviving spouse Total: Wife get $300K C1 gets $150 K Here, 100K + 250K = 350K C2 gets $150 K Total: Wife gets $350K C1 gets $125,000 C2 gets $125,00 Example: [H] + W − C2 \ / C1 H dies intestate with a $600K estate What does W get? What does C1 get? What does C2 get? §732.102(2)—If there are LDs of decedent, all 2-102(3)—the first $150K + ½ pf any balance of whom are also LDs of the spouse, 1st $60K + of the intestate estate, if all the decedent’s LDs ½ the balance to the spouse are also LDs of surviving spouse, and the surviving spouse has one or more surviving LDs Here, $60K + $270K = $330K who are not LDs of decedent Total: Wife gets $330K C1 gets $270K Here, $150K + 225K = 375K C2 gets $0 b/c not an LD of H Total: Wife get $375K & C1 gets $225K 4 UPC looks at children outside of the spousal relationship. Florida does not consider a child outside of the marital relationship. Step-children are never counted, unless adopted. §732.103—Share of other heirs Order of distribution: 1. Lineal Descendants of D, if none, then to next taker; Surviving Spouse & then children, grandchildren, etc. 2. If no LDs, then to D’s parents equally or to the survivor of them • If both alive, 50-50 each • If only ONE surviving, he/she gets total share due to the parents • If NONE, then to next taker 3. D’s siblings and descendants of D’s siblings, if none, then to next taker (§732.203(3)) 4. Grandparents–50% to M’s side & 50% to F’s side–if none, then to next taker • To maternal grandmother and grandfather & to paternal grandmother and grandfather • M side gets 50% o Maternal grandmother 25% o Maternal grandfather 25% • P side gets 50% o Paternal grandmother 25% o Paternal grandfather 25% • IF no grandfather or grandmother, then to the descendants (D’s uncles, aunts) and descendants off deceased uncles & aunts (cousins) • If no kindred on Paternal/Maternal side, then all goes to remaining side 5. Kindred of the deceased spouse • If death ended marriage the spouse’s family can inherit • If divorce ended the marriage then skip 5 6. If no spouse and no family, property escheats to the state because the state cannot find heirs. Intestacy Schemes • Vary by jurisdiction • Florida does NOT follow the majority. Florida follows a pure per stirpes system • Majority follows per capita with representation • Others follow 1990 UPC or pre-1990 UPC Three Types of Intestacy Distribution Schemes: 1. Per stirpes 2. 1990 UPC per capita at each generation 3. Per capita with representation Per capita means per head. Rule—A descendant of decedent who has a living ancestor who is also the decedent’s descendant is NOT an eligible taker.
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