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Wills and Trusts
St. Thomas University, Florida School of Law
Butler, Gordon T.

Wills and Trusts Outline Professor Butler Spring 2016

Chapter I: Probate and Gross Estates

Introduction

Fig. A: Estate Diagram 8/18/15

Gross estate is federal
Elective estate is sometime called the augmented estate outside of Florida
Probate estate is subject to the state

Terminology

Terminology Related to Wills and Intestacy

Most of the terms are defined in Fla. Stat. § 731.201

Administrator Cum Testamento: an administrator who served when the will did not name a personal representative or the named one could not serve
Administrator de Bonnis Non: the administrator of the property that had not been administered because the personal administrator had failed in his duty
Appointee: the person chosen by the power holder to receive the property
Beneficiary: a person for whose benefit the trust is administered
Bequest: (see devisee)
Creditors: can reach different interests depending on the kind of trust the settlor has
In a revocable trust creditors of the settlor can reach all interests in trust (even if designated for a beneficiary)
In an irrevocable trust creditors of the settlor can only reach the beneficial interests (if any) retained by settlor
Curator: a person appointed by the court to take charge of the estate until a personal representative is given authority to act
Descent: a disposition of property through intestacy law
Designation of Health Care Surrogate: authorizes one person to make medical decisions for another; it operates when the first person is unable to make those decision or is unable to provide informed consent to treatment
Devise (Bequest): A disposition of property by a will, or to dispose through a will; bequest is used for personal property given by will and devise for real property but they can be used interchangeably
Devisees (Legatees): persons receiving property through will provisions—earlier cases may distinguish between legatees who receive bequests of personal property, and devisees who receive devises of real property
Donee (Power Holder): the person who decides who will receive the property
Donor: the person who creates the power of appointment and whose property will ultimately be distributed to another
Elective Estate: a state law concept used to determine the amount a decedent’s surviving spouse is entitled to elect to take; one-year look back
Elective Share: should be called a minimum share; elective share applies also to non-probate property; if the spouse does not get a minimum amount, the state has to ensure the spouse gets at least the difference so that the spouse gets that minimum amount
How it used to be = the spouse is allowed to make the election; can also reject what the will assigns to the spouse and take a share of the probate estate
Estate: in general, when used without a modifier, it refers to a property that is subject to administration, often referred to as property subject to probate
Grantor (Settlor): the person who transfers property into trust
Gross Estate: a federal tax concept and is the starting point for determining if estate tax is due after the decedent’s death; three-year look back
Heir at Law (Heir): a person entitled to take the decedent’s property under the laws of intestate succession
Intestate Decedent: an individual who dies without a will; a decedent can be partially intestate (if certain property was not on the will) and partially testate
Decedent is intestate; or
He has died intestate
Living Will: a document that indicates an individual’s desires regarding life-prolonging procedures in situations that involve terminal medical conditions, end-stage medical conditions, or persistent vegetative states
Non-probate Estate: property that passes on automatically upon death; the property bypasses the court process and goes directly to the beneficiaries
Personal Representative: The person who administers an estate
Power of Attorney: grants someone (the agent) the power to do something on someone else’s (the principal’s) behalf; expire on death but can survive disability or incompetence
Power of Appointment: have to do with trusts; gives discretion to someone to distribute estate in the way he/she deems appropriate or according to instructions
Probate Administration: a process for administering a decedent’s estate and intestate property; Probate court in Florida has jurisdiction over real estate located in Florida and personal property located anywhere
If you own and want to transfer property in another state, you must open an ancillary proceeding to dispose of it under Florida law
Probate Estate: the property that is subject to the administration is the probate estate; some non-probate property may end up in probate estate
Probate of a Will: the process of establishing the validity of a will and admitting it to probate
Settlor: the technical term for trustor, who establishes a trust to trustee for the benefit of the beneficiary
Taker in Default: receives the property if the power holder fails to exercise the power
Testamentary Transfers: less influence now that it once had because of statutes
Testate Decedent: a person who has died with a will
Testator (or Testatrix): an individual who makes a valid will
Trust (Express Trust): an intentional agreement that separates legal and equitable title to property and provides for management of that property for the

th flexibility
Privacy may also be important, as if litigation ensues, the general public may learn of family disputes and unflattering information about the decedent or various family members

Other Factors an Attorney Should Consider Related to Wills

Property cannot pass by will unless the testator has a valid will, meaning the testator must be eligible to make a will, and observe the required formalities
A will is not an irrevocable document and may be modified
If a will is unable to be found it raises the question of whether the testator destroyed, and thus revoked it, or if it was truly lost

Federal Involvement in the Administration of Estates

Other than the federal estate tax, probate is generally local in nature
Federal courts might entertain cases involving federal rights or disputes between citizens of different states, under its diversityjurisdiction, with the state probate court administering the property subject to these federal rights and rulings

Probate, Elective, and Gross Estates

Probate Estate

Probate Estate: a state law concept referring to property that is subject to administration
Generally probate consists of…
Property owned solely by the decedent
The interest a decedent owns as a tenant in common
A vested remainder owned by the decedent
Real property is subject to probate in the jurisdiction in which it is located
Generally, tangible and intangible property is subject to probate in the jurisdiction in which the decedent is domiciled at death

Elective Estate

The Florida statutes give the surviving spouse the right to certain percentage of the value of the decedent’s property

Gross Estate

The Gross Estate is a federal tax concept
It includes the decedent’s probate estate, but is often much larger
The gross estate includes the value of nonprobate property if the decedent is treated as having sufficient interests in, or rights to affect the enjoyment of, that property
As a general rule, if an asset is included in the gross estate, its value is treated as the recipient’s basis in that property for purposes of a later sale