WILLS & TRUSTS OUTLINE
Class Themes:
(1) Distinction between PROBATE and NONPROBATE assets.
(2) Predictability of Probate and Nonprobate processing systems.
(3) Integration of the Nonprobate and Probate systems.
FPC 732.101 Intestate estate.
(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.
(2) The decedent’s death is the event that vests the heir’s right to the decedent’s intestate property.
FPC 732.102 Spouse’s share of intestate estate.
The intestate share of the surviving spouse is:
(1) If there is no surviving lineal descendent of the decedent, the entire intestate estate.
(2) If there are surviving descendants of the decedent, all of whom are also lineal descendants of the surviving spouse, the first $60,000 of the intestate estate, plus one-half of the balance of the intestate estate. Property allocated to the surviving spouse to satisfy the $60,000 shall be valued at the fair market value on the date of distribution.
(3) If there are surviving lineal descendants, one or more of whom are not lineal descendants of the surviving spouse, one-half of the intestate estate.
FPC 732.103. Share of other heirs.
The part of the intestate estate not passing to the surviving spouse under s. 732.102, or the entire intestate estate if there is no surviving spouse, descends as follows:
(1) To the lineal descendents of the decedent.
(2) If there is no lineal descendant, to the decedent’s father and mother equally, or to the survivor of them.
(3) If there is none of the foregoing, to the decedent’s brothers and sisters and the descendants of deceased brothers and sisters.
(4) If there is none of the foregoing, the estate shall be divided, one-half of which shall go to the decedent’s paternal, and the other half to the decedent’s maternal, kindred in the following order:
(a) To the grandfather or grandmother equally, or to the survivor of them.
(b)If there is no grandfather or grandmother, to uncles and aunts and descendants of deceased uncles and aunts of the decedent.
(c) If there is no paternal kindred or no maternal kindred, the estate shall go to the other kindred who survive, in the order stated above.
(5) If there is no kindred of either part, the whole of the property shall go to the kindred of the last deceased spouse of the decedent as if the deceased spouse had survived the decedent and then died intestate entitled to the estate.
(6) If none of the foregoing, and if any of the descendants of the decedent’s great-grandparents were Holocaust victims as defined in s. 626.9545(3)(b), including such victims in countries cooperating with the discriminatory policies of Nazi Germany, then to the lineal descendants of the great-grandparents.
FPC 732.104 Inheritance per stirpes.
Descent shall be per stirpes, whether to lineal descendants or to collateral heirs.
FPC 732.105 Half blood.
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 they shall have whole parts.
FPC 732.106 Afterborn heirs.
Heirs of the decedent conceived before his or her death, but born thereafter, inherit intestate property as if they had been born in the decedent’s lifetime.
FPC 732.107 Escheat.
(1) When a person dies leaving an estate without being survived by any person entitled to a part of it, that part shall escheat to the state.
(2)Property that escheats shall be sold as provided in the Florida Probate Rules and the proceeds paid to the Chief Financial Officer of the state and deposited in the State School Fund.
(3) At any time within 10 years after the payment to the Chief Financial Officer, a person claiming to be entitled to the proceeds may reopen the administration to assert entitlement to the proceeds. If no claim is timely asserted, the state’s rights to the proceeds shall become absolute.
(4)The Department of Legal Affairs shall represent the state in all proceedings concerning escheated estates.
(5) (a)
FPC 732.109 Debts to decedent.
A debt owed to the decedent shall not be charged against the intestate share of any person except the debtor. If the debtor does not survive the decedent, the debt shall not be taken into account in computing the intestate share of the debtor’s heirs.
FPC 732.1101 Aliens.
Aliens shall have the same rights of inheritance as citizens.
FPC 732.111 Dower and curtesy abolished.
Dower and curtesy are abolished.
FPC 732.401 Descent of homestead.
(1) If not devised as permitted by law and the Florida Constitution, the homestead shall descend in the same manner as other intestate property; but if the descendant is survived by a spouse and lineal descendants, the surviving spouse shall take a life estate in the homestead, with a vested remainder to the lineal descendants in being at the time of the decedent’s death per stirpes.
(2)Subsection (1) shall not apply to property that the decedent and the surviving spouse owned as tenants by the entirety.
FPC 732.4015 Devise of homestead.
(1) As provided by the Florida Constitution, the homestead shall not be subject to devise if the owner is survived by a spouse or minor child, except that the homestead may be devised to the owner’s spouse if there is no minor child.
(2)For the purposes of subsection (1), the term:
(a) “Owner” includes the grantor of a trust described in s. 733.707(3) that is evidenced by a written instrument which is in existence at the time of the grantor’s death as if the interest held in trust was owned by the grantor.
(b) “Devise” includes a disposition by trust of that portion of the trust estate which, if titled in the name of the grantor of the trust, would be the grantor’s homestea
t part of the allowance not paid. For purposes of this section, the term “lineal heir” or “lineal heirs” means lineal ascendants and lineal descendants of the decedent.
Chapter 1. Introduction to Family Property Law
DONATIVE FREEDOM
Where does it come from?
“The dead hand rules succession only by sufferance of the state.” (it is a statutory right only)
“Although donative freedom has a strong cultural tradition in Anglo-American law, it is not considered to be constitutionally protected against all forms of interference or limitation.
“In Irving Trust Co. v Day, 314 U.S. 556 (1942), the Supreme Court held that the Fourteenth Amendment does not prohibit a state from granting the decedent’s surviving spouse an elective share in the decedent’s estate.”
THE PROBATE / NONPROBATE DICHOTOMY
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.
Examples: cash, car (depending on the title), home
A decedent’s Nonprobate assets are those which are transferred to a beneficiary AUTOMATICALLY at death.
Examples: revocable trusts, life-insurance policies, pension-accounts, joint bank/stock accounts ARE ALSO CALLED WILL SUBSTITUTES.
Will substitutes have flourished in recent years primarily because, “the probate system has earned a lamentable reputation for expense, delay, clumsiness, makework, and worse.”
3 Essential Functions of Probate:
1. To make property marketable again (title-clearing)
2. To pay off decedent’s debts (creditor protection)
3. To implement decedent’s donative intent (distribution)
THE UNIFORM PROBATE CODE
The UPC is designed to reflect four fundamental policy objectives:
1. To respond to changes in the multi-marriage society.
2. To protect spouses from disinheritance.
3. To further uniformity in probate law.
4. To diminish formalistic barriers to transferor’s intent.
Chapter 2: Intestate Succession
POLICY BASES OF INTESTATE SUCCESSION
A. To effect the orderly distribution of property
B. To approximate what decedent’s would have done if they had made a will.
C. To hold spouses and children as favored under the law because statistics show that they are the “natural objects of most peoples’ bounty.”
Societal policy interests in intestate succession include:
