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

Prof. Butler – Spring 2017
Chapter 1:  Donative Freedom, Probate Estates & NonProbate Assets
Statutory Ref – Fla. Stat. §:
731.201 – Definitions (Beneficiary, Curator, Devise, Devisee, Estate, Heirs, Power of Appointment, Probate of Will, Trust, Trustee, Will)
Terminology related to wills and intestacy: (S 731.201)
– document that serves multiple functions.  It may dispose of the testator’s property, revoke a prior will, or appoint a personal representative.
Intestate decedent – otherwise known as an intestate, is a person who dies without a will.
Heir at Law – person entitled to take the decedent’s property under the laws of intestate succession.
– individual who dies with a valid will.
– a female testator, but the term testator is the same.
  – disposition of property by will
– persons receiving property thorough will provisions.
– same as devisees-people who receive bequests of personal property as distinguished from devises of real property to devisees, but the terms are the same. 
– devisees of a testate estate and heirs of an intestate estate
Probate Administration – process for administering a decedent's testate and intestate property.
Probate of a Will – process of establishing the validity of a will and admitting it to probate.
– Property that is subject to administration (sometimes referred to as property subject to probate
Gross Estate – measure of the decedent’s wealth and is not limited to probate property.  A federal tax concept.
Probate Estate – the property that is subject to administration.
Elective Estate – state law concept used to determine the amount a decedent's surviving spouse is entitled to elect to take. 
Personal Representative – person (a fiduciary) who administers an estate. (Executor / Executrix; Administrator / Administratrix)
– person appointed by the court to take charge of the estate until a personal representative is given authority to act.
– a supplement to a will; a testamentary instrument intended to alter an already executed will
Terminology Related to Trusts:
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 trust – trust established during a person’s lifetime.
Testamentary Trust – trust established in a will.
– person who transfers property into a trust.
– person who is responsible for administering the trust property.
– person for whose benefit the trust is administered.
Other Terminology
Power of appointment – allows a property owner to give another person the right to decide who will ultimately receive the owner’s property.
– the person who creates the power of appointment and whose property will ultimately be distributed to another.
Donee/Powerholder – the person who decides who will receive the property.
Objects of the power – eligible recipients.
Durable power of attorney – authorizes one person (the attorney in fact) to act for another (the principal).  Depending on how it is drafted, it is effective when signed or when the person granting the power becomes incapacitated.
Designation of health care surrogate – authorizes one person to make medical decisions for another.  Operates when the person in questions can’t make decisions and/or can’t provide informed consent.
Living Will – document that indicates an individual’s desires regarding life-prolonging procedures in situations that involve terminal medical conditions, vegetative states, end-stage medical conditions, etc. 
Wills and the Constitutional Right to Devise:
Right to Devise
Article I, § 2, Fla. Const. – Basic rights. — All natural persons, female and male alike, are equal before the law and have inalienable rights, among which are the right to enjoy and defend life and liberty, to pursue happiness, to be rewarded for industry, and to acquire, possess and protect property; except that the ownership, inheritance, disposition and possession of real property by aliens ineligible for citizenship may be regulated or prohibited by law. No person shall be deprived of any right because of race, religion, national origin, or physical disability.
(mortmain statue) – made charitable devises voidable when written in a will or codicil that was executed less than 6 months before death, if decedent was survived by spouse or descendants.
Declared unconstitutional by Shriners Hospitals for Crippled Children v. Zrillic:
the disposition of property by will is protected by the Florida Constitution-Basic Rights;
testator has a constitutionally protected right to devise property even though the state has inherent powers to regulate those rights;
it was not reasonably necessary to protect family members who are dependent or in financial need, because it would lead to the absurd conclusion that all family members, including adult children are dependents.
Family Protection Limitations on the Right to Dispose of Property
Discretion is not unfettered when providing/not providing for family members;
State imposed distribution rules – may override provisions to provide for family members if omitted or not given large enough share;
Federal rules may limit an employee’s rights to direct

Fla. Stat. 731.201(12) = “estate”
Best defined by exclusion – see Sec. VII
– determines composition of probate estate
Tangible & intangible personal property is subject to probate where decedent was domiciled at time of death
Real property is subject to probate in the jurisdiction in which it is located
proceeding – probate of property outside of state of domicile
Types of Probate Property
Property owned solely by the decedent.
Interest in a tenancy in common.
A vested remainder.
Elective Estate
value of decedent’s rights to, and interest in, property even if that property is not subject to probate
surviving spouse right to 30% of decedent’s property
spouse could severely limit the survivor’s rights by transferring property into non-probate ownership forms with some others person.
Although property held in nonprobate ownership form is not party of the probate estate, its value may be included in determining the surviving spouse’s elective share
Gross Estate
Federal tax concept
Value of the estate’s assets at the time of death
includes the value of non-probate property if the decedent is treated as having sufficient interests in or rights to affect enjoyment of, that property
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.
= term used to describe the investment in an item for pursposes of the income tax.
Stepped-up basis – a basis that exceeds the original cost due to value increase over time.
Carryover/transferred basis – beneficiary uses the decedent’s basis rather than the gross estate value
Generally used for inter vivos gifts
Example:  If X devises stock that was purchased for $10,000 that had appreciated to $50,000 at the time of death.  The shares are valued at a $50,000 basis, and the beneficiary doesn’t have to pay the income tax on the $40,000 appreciation.
Relationship of Probate and Gross Estates
Probate estate is part of the gross estate, but the gross estate is larger than the probate estate and can include non-probate property
Gross Estate = Probate + Non-Probate