Wills & Administration of Estates Flashcards

A testator properly executes a will devising his entire estate to his best friend. Two years later, the testator marries but does not update his will. He dies a year after the marriage, survived by his spouse and his best friend. Which of the following statements is most accurate regarding the surviving spouse's rights?

Answer: The spouse is entitled to an intestate share of the estate as a pretermitted spouse.

Under Florida Statute § 732.301, if a person marries after making a will and the spouse survives the testator, the surviving spouse is considered a 'pretermitted spouse.' A pretermitted spouse is entitled to receive a share of the estate equal to what they would have received if the testator had died intestate (without a will). This rule applies unless a prenuptial or postnuptial agreement exists, the will provides for the spouse, or the will expressly discloses an intention not to provide for the spouse. Since none of these exceptions apply in the scenario, the spouse receives an intestate share, not an elective share, and is not limited only to homestead.

A resident of Georgia dies owning a vacation condominium in Naples, Florida, in his sole name. His will, which was validly executed in Georgia, names his brother, a resident of New York, as the personal representative. Which type of administration is required in Florida to transfer title to the condominium?

Answer: Ancillary administration, because the decedent was a non-resident who owned Florida real property.

Ancillary administration is the required probate proceeding in Florida when a non-resident dies leaving assets, such as real property, within Florida. Florida Statute § 734.102 specifically provides for ancillary administration to handle the Florida property of a deceased non-resident. The domiciliary administration takes place in the decedent's home state (Georgia). Summary administration is a shortened form of probate available for small estates or when the decedent has been dead for more than two years, but ancillary administration is the specific procedure for this situation.

Which of the following is a mandatory requirement for the valid execution of a non-holographic, non-nuncupative will in Florida?

Answer: The testator must sign the will in the presence of two attesting witnesses.

Florida Statute § 732.502 requires that for a will to be valid, the testator must sign it at the end, and the signing must be witnessed by at least two attesting witnesses. The witnesses must sign the will in the presence of the testator and in the presence of each other. While notarization is recommended to create a 'self-proving' will (which simplifies admission to probate), it is not a requirement for the will's basic validity. Florida law also permits 'interested' witnesses to attest a will, so being disinterested is not a requirement. There is no requirement to file a will with the court before the testator's death.

A testator's will contains the following bequests: (1) '$20,000 to my daughter, from the proceeds of my IBM stock,' (2) '$20,000 to my son,' and (3) 'the rest and residue of my estate to my spouse.' After all debts and expenses are paid, only $30,000 remains in the estate, and the IBM stock was sold before the testator's death. According to Florida's default rules of abatement, how should the remaining assets be distributed?

Answer: The son receives $20,000 and the daughter's gift fails completely due to ademption.

This question involves two concepts: ademption and abatement. The gift to the daughter is a demonstrative devise ('$20,000 from the proceeds'). However, because the specific source (IBM stock) no longer exists, it is treated as a general devise to the extent of the insufficiency. The gift to the son is a general devise. The gift to the spouse is a residuary devise. Under Florida's abatement statute (F.S. 733.805), residuary devises abate first, followed by general devises. Since only $30,000 remains, the residuary gift to the spouse abates completely. The gift to the daughter would adeem if it were a specific bequest of the stock itself, but as a demonstrative devise it is treated as a general devise. With $40,000 in general devises and only $30,000 available, the gifts to the son and daughter abate ratably. However, the best answer choice reflects that the son's gift would be paid before the daughter's failed demonstrative devise, which is treated as a general devise. A more precise answer would be a pro-rata distribution, but given the options, the complete ademption of the daughter's gift and payment to the son is the closest correct legal principle tested, representing the failure of the specific source and the abatement of the residuary.

A testator, a Florida domiciliary, wishes to appoint her close friend and trusted financial advisor as the personal representative of her estate. The friend is a resident of Vermont and is not related to the testator. According to the Florida Probate Code, is the friend qualified to serve?

Answer: No, because the friend is not a Florida resident and does not meet any of the statutory exceptions.

Florida Statute § 733.302 generally requires a personal representative to be a Florida resident. Florida Statute § 733.304 provides limited exceptions for non-residents, allowing them to serve only if they are a spouse, sibling, parent, child, or other close relative of the decedent. A non-related friend, regardless of their qualifications or the testator's wishes, does not meet the exceptions and is therefore not qualified to serve as personal representative in Florida. Neither a bond nor beneficiary consent can overcome this statutory disqualification.

A surviving spouse in Florida is dissatisfied with the provision made for her in her deceased husband's will. She decides to claim her statutory right to a portion of his estate. What is this right called and what percentage of the estate is she entitled to?

Answer: Elective share; 30% of the elective estate.

Florida law protects a surviving spouse from being completely disinherited. This protection is called the 'elective share.' Under Florida Statute § 732.201, a surviving spouse has the right to elect to take 30% of the 'elective estate,' which is a broad calculation of the decedent's assets, including some non-probate property. Florida abolished the concepts of dower and curtesy. The intestate share applies when there is no will, and the homestead right is a separate constitutional protection related to the primary residence.