Wills and Trust
Spring 2015
Professor Gonzalez
Necessary Terminology:
– Will: a document that serves multiple functions. It may dispose of the testator’s property, revoke a prior will, appoint a personal representative, and serve other objectives.
– Intestate/Intestate Decedent: an individual who dies without a will (or valid will)
– Testator/Testatrix: an individual who makes a valid will
– Devisees: persons receiving property through will provisions
o Legatees: persons who receive bequests of personal property
o Devisees: persons who receive devises of real property
– Beneficiaries: both devisees of a testate estate and heirs of an intestate estate are considered beneficiaries
– Devise: a disposition of property by will
– Probate Administration: is a process for administering a decedent’s testate and intestate property
– Probate Estate: the property that is subject to administration
– Probate of a Will: the process of establishing the validity of a will and admitting it to probate
– Estate: in general, when used without a modifier, it refers to property that is subject to administration. Property owned by the decedent upon death this is subject to probate
– Gross Estate: a federal tax concept and is the starting point for determining if estate tax is due after the decedent’s death
– Elective Estate: a state law concept used to determine the amount a decedent’s surviving spouse is entitled to elect to take
– Personal Representative: the person who administers an estate
o Executor/Executrix: testate estates
o Administrator/Administratrix: intestate estates
– Curator: a person appointed by the court to take charge of the estate until a personal representative is given authority to act
– Administrator Cum Testamento Annexo (CTA): was the administrator of the property that had not been administered because the personal representative failed to complete the administration
– Express Trust: an intentional agreement that separates legal and equitable title to property and provides for management of that property for the benefit of the trust’s beneficiaries
– Inter Vivos: during life
– Testamentary Trust: trust made through a will
– Settlor or Grantor: the person who transfers property into a trust
– Trustee: the person responsible for administering the trust property
– Beneficiary: a person for whose benefit the trust is administered.
– Power of Appointment: allows a property owner to give another person the right to decide who will ultimately receive the owner’s property
– Donor: the person who creates the power of appointment and whose property will ultimately be distributed to another
– Donee/Power Holder: the person who decides who will receive the property
– Objects of Power: the eligible recipients
– Appointee: the person actually chosen by the power holder to receive the property
– Taker in Default: receives the property if the power holder fails to exercise the power
Constitutional Right to Devise:
The right to devise: One has a constitutional right to devise and can only be reasonably regulated. (Shriner’s Hospital v. Zrillic Fla. 1990)
– However, the state may override provisions of a will if the testator fails to provide for family members. This may conflict with the expressed wishes of the decedent.
Probate, Elective, and Gross Estates
Probate Estate: property that is subject to administration. Generally consists of:
· Property owned solely by the decedent,
· The interest a decedent owns as a tenant in common, and
· A vested remainder owned by decedent
*Real Property is subject to probate in the j/d in which is it located
*Tangible and Intangible Personal Property is generally subject to probate in the j/d in which the decedent is domiciled at death.
Elective Estate: the surviving spouse’s elective share. This values the decedent’s rights to, and interests in, property even if that property is not subject to probate.
Gross Estate: Federal tax concept. Includes the probate estate but also the value of non-probate property if the decedent is treated as having sufficient interests in, or right to affect enjoyment of, that property.
Property that is Not Subject to Probate
Jointly owned property with survivorship rights
– Tenants by the Entirety: if husband and wife take title to the property in both names, tenants by the entirety is presumed in Florida unless otherwise stated
o If tenants by the entirety, surviving spouse takes all property
o Should still put heir in will!!
– Joint Tenants with Right of Survivorship
o Surviving tenant gets decedent’s portion
o If not married, Florida law requires language creating right of survivorship
– Special Rules Governing Survivorship Tenancies
o If two or more persons own a bank account, unless a document state
(2) If the decedent is survived by one or more descendants, all of whom are also descendants of the surviving spouse, and the surviving spouse has no other descendant, the entire intestate estate.
(3) If there are one or more surviving descendants of the decedent who are not lineal descendants of the surviving spouse, one-half of the intestate estate.
(4) If there are one or more surviving descendants of the decedent, all of whom are also descendants of the surviving spouse, and the surviving spouse has one or more descendants who are not descendants of the decedent, one-half of the intestate estate.
“Surviving Spouse” –
A spouse is a legal status. If a couple does not go through the legal channels to have a valid marriage, the survivor of the two, upon death of the other, would not take.
HOWEVER, if there is good faith and substantial compliance with Chapter 741 of the Fla. Stat. the marriage may still be valid.
Also, even if a valid marriage and not a valid dissolution à if a spouse acts with (1) blatant and wanton disregard for the institution of marriage, or (2) reprehensible character so as to shock the conscience of the court, the court may find the marriage to be invalid or dissolved.
A potential heir can challenge the validity of the marriage after decedent’s death.
**Florida DOES NOT recognize Common Law Marriage
Fla. Stat. §732.103 – Share of other heirs. The part of the intestate estate not passing to the surviving spouse under §732.102, or the entire intestate estate if there is not surviving spouse, descends as follows:
(1) To the descendants of the decedent
(2) If there is no 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:
