Winter 2014

Maurer

Professor

Wills and Trust Outline

WILLS
Chapter 1: Probate and Gross Estates
I. Terminology
a. Heir (Heir at law): A person entitled to take under the laws of intestate succession.
b. Devise: The gifting of real or personal property.
c. Legacy: Was a historical gift in a will of a sum of money.
d. Bequest: the giving of personal property. (Florida makes no distinction between devise,
legacy, and bequest)
e. Administrator: a person assigned by the court to administer an estate when decedent
died intestate.1
f. Probate administration: The process of administering a decedents testate and
intestate property.
g. Probate of a will: The process of establishing the validity of a will and admitting it to
probate.
h. Curator: A person designated by the court while a personal representative is given
authority.
i. 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 trusts
beneficiaries. An entity where one person holds wealth for the benefit of another. Trustee
holds legal title and beneficiary has equitable title.
Can be established during life (inter vivos trust) or in a will (testamentary
trust).
j. Object of the power: The eligible recipients.
k. Taker in default: Usually selected by the donor to receive the property if the power
holder fails to exercise the power.
l. Durable Power of Attorney: Authorizes one person (agent) to act for another
(principal).
m. Designation of healthcare surrogate: authorizes one person to make medical
decisions for another.
n. Living will: indicates an individuals desires regarding life-prolonging procedures in
situations that involve terminal medical conditions, end-stage medical conditions, or
persistent vegetative states.
o. Residuary clause: A testamentary clause that disposes of any estate property remaining
after the satisfaction of all other gifts.
p. Letters of administration: the legal document that the PR uses throughout the probate
process to prove that he or she has authority to manage the estate.
II. Wills and Constitutional Rights to Devise
A. The Right to Devise
Rule: There is no U.S. Constitutional right to devise, rather a Florida
Constitutional right to devise. (Shriner Hospitals v. Zrillic)
Mortmain statute (abolished): Charitable devises made within 6 months prior to
death, if survived by spouse or descendants, are voidable.
Legislature wanted to avoid people making irrational decisions prior to death
trying to buy themselves into heaven. The test used was whether the state has a

1 Florida calls everyone a personal representative regardless of testate or intestacy or sex.

Page 1 of 97

Winter 2014
Maurer

Professor

legitimate interest that is reasonably necessary to limit the property rights

guaranteed by FL constitution.
Hypo: Fred signed a will leaving $50k to SBCA and everything else to his sister
today. He dies. If mortmain statute was still in place is this the situation that the
legislature intended to avoid? No. Thus it was overbroad. Encompassing situations
not relevant to their intent.
Person can either voluntarily choose not to exercise his right to devise or lack
mental capacity to do so.
To avoid some of the restrictions of a will, you can establish a trust.
The laws governing Wills & Trusts are mostly state law.
B. Will-Related Issues
Consequences to admitting a Will into Probate:
i. Beneficiaries have no interest in a Will, and the Will has no impact, until the
Will is admitted to probate (a judge accepting the Will as valid).
ii. Once the Will is admitted, the decedents property belongs to the estate.
Admission of the Will does not automatically give the beneficiary possession
of any propertythat only happens after the will has been admitted and
distributed, although the title will be in the beneficiaries name possession
doesnt occur immediately.
iii. **You must assert any rights to an estate in probate or you will lose them**.
There are time limits imposed on claims. The PR is supposed to place an ad
to all creditors giving them a specific amount of time to file any claims.
Anything thereafter is barred from collecting.
C. Probate Estates
Probate Estates (state law conceptreferring to property subject to
administration)
i. Items included in the probate estate are described based on characteristics
rather than specific listing.
ii. Probate is referred to the entire process of administering a Will, from
recognizing the validity of the estate and the administering of the estate
(dealing with creditors, etc.).
iii. Probate is filed in the county where the decedent resided.
iv. Why do we have probate? The purpose of probate is to provide a smooth
process for a smooth transition of ownership of assets that decedent owned
at time of death, to the people who are entitled to get them (by law) whether
by shares, proportion, etc.
v. Definition/Test for determining what probate property is: Probate
property includes things of value that the decedent owned at death, solely
in the decedents name, on which there is no designated beneficiary who
survived the decedent, as long as the thing of value is not the decedents
protected homestead or non-Florida real property. (value doesnt need to
be great, it just needs to be worth something, anything)
Assets may include: patents, real property, cattle, boards, planes,
jewelry, bank accounts, stocks, bonds, shares on LLC, and contract
rights (except for contracts that are for personal service). All
contracts should include language that makes their heirs binding on
contract. Automobile insuranceif decedent died in an auto accident,
take a look at the auto insurance policy because there may be benefits
payable to the decedent (i.e. UM coverage).
If check from a claim appears after decedents death then that is
probate property.
Page 2 of 97

Winter 2014
Maurer

Professor

Check if decedent solely owned it and if not then the type of

ownership. Those with rights of survivorship go to the living person. If
tenants in common, then property will be split.
Damages covered by the FL Wrongful Death Act are not part of
probate or gross estate.
vi. Venue of Probate proceedings: A probate proceeding can be initiated
In the county where decedent was domiciled;
(1) Domicile: **Very Important** the composition of probate
estates are affected by whether the decedent is domiciled in Fl.
(Domicile same as residence for purposes of probate). FS
733.101
i. Domiciliary: In FL, domiciliary probate is the
proceeding that occurs for a decedents estate in the
state in which the decedent was domiciled (principal
residence).
1. For decedents who were FL residents with real
property out-of-state, since FL lacks jurisdiction,
there needs to be a separate proceeding in each
state where property was owned called an
ancillary administration probate.
(2) Non-domiciliary: Can own property in FL.
(3) Note: Do NOT assume that people are residents of FL. They
may own property here but are still not residents of FL.
(4) Hypo: Do a husband and wife have to have the same domicile?
No. They can live in different places and be domiciled in
different counties.
(5) Hypo: Husband and wife separate. Husband moves to
Jacksonville from Broward County. Husband dies, where is his
domicile? Jacksonville.
In the county where decedents property was located; or
(1) Hypo: What if dead guy lived in Michigan but owned property in
Miami, FL. Can we start a probate here? Yes under FS 733.101
(b), you can start the probate in the county where the decedent
owned the property.
(2) Hypo: What if he owned several properties in different counties
within Florida? You can start probate in either county, doesnt
matter.
The county of where decedent is owed any debt.
(1) Hypo: What if dead guy didnt live or own property in Florida;
can a probate be started in FL? No, unless the debtor resides in
Florida.
Property
i. Real Property is subject to probate in the jurisdiction in which it is located.
ii. Tangible and intangible refers to personal property that is subject to
probate in the jurisdiction in which the decedent is domiciled at death.
Hypo: If decedent owned property in FL and NC at time of death, it
may be subject to probate in both states. The FL proceeding will not
cover properties in both states, NC will only administer those from
that state.
Anything that is on the decedents person at the time of death is
assumed to be the decedents. Although, that may not always be the
Page 3 of 97

Winter 2014
Maurer

Professor

case. If its found not to be his, then it is subject to claim by its

rightful owner.
What is tangible property? Anything of value that you can touch.
Not everything that you touch can be of value. It cant be something
that represents something of value (i.e. check book or paper).
(1) If decedent owned farmland, as long as the crops are affixed to
the property they are a part of the real estate. If they are
removed (picked them or sold rights to pick them) then they are
personal property.
iii. Florida is not a community property state, but we have community property
laws. Usually pertaining to people that are married and move to FL from a
community property statethose community property attributes remain.
Hypo: John and Sarah lived forever in Cali (community property
state). They bought a house and sold it for $3m. John came here, while
Sarah stayed in Cali finishing work. While in Fl, John opens up a
brokerage account for the money cause Sarah isnt here. Sarah comes
and John dies. Johns Will leaves everything to his children. Who gets
the money? Sarah. The money is community property. She gets $1.5m
and a portion of the remaining $1.5m under statute.
Collateral Claim Rule: If you fail to timely object to a Will or codicil (outside 90
days), after proper notice, you cannot engage in a collateral attack on the Will in
some other forum because it will be invalid.
i. Hypo: Fred played chess with Dave the night before Fred died. Dave owned
the chessboard. Dave would have to initiate a claim in the probate court in
order to retrieve ithe would not be able to wait until the proceeding is over
with to then sue Freds wife.
ExceptionExtrinsic Fraud: The act of preventing someone
(through trickery) from asserting a claim/right in probate court by
fraudulent means.
(1) Hypo: PR promises to pay creditor and tells them not to bother
filing a claim. 90 days pass and PR says oops no money. That is
extrinsic fraud because they were lied to and kept from filing a
claimif not for the fraud, the person would have brought a
claim.
Intrinsic Fraud: Fraud within the actual probate process. PR lies to
the court about who owned the chess set. The person needs to
straighten it out in court otherwise barred.
D. Florida Resident Estates Upon Death: When a Florida resident dies, up to 3 possible
types of estate proceedings may be initiated:
Probate estate: (discussed above)
Taxable estate: The IRS cares about. Includes the probate estate plus other
things. The current tax law is when a person dies, if total value of taxable estate
is less than $5,340,000 then not taxable.
Elective estate: Includes 9 categories of assets. Including probate estate. If
decedent dies a FL resident, and spouse is not happy with what they are getting,
they have the right to demand an elective share. To determine, they must be able
to compute the elective estate.
E. Property That is Not Subject to Probate
If the decedents estate is specifically made a beneficiary, those proceeds will be
included in probate estate (i.e. life insurance proceeds).
Jointly Owned Property with Survivorship Rights
Page 4 of 97

Winter 2014
Maurer

Professor

Tenancy by the Entirety: If a husband and wife take title to property in

both names, FL law presumes they own it as tenants by the entirety
(unless instruments state otherwise). To avoid they must state their desire
(i.e. tenancy in common).
If tenancy by the entirety, then the surviving spouse takes all of the
property by operation of law.
Reasons why you should have a Will if you own property as tenants by
the entirety:
(1) DeathWho will die first?! The identity of the ultimate taker
depends on which spouse dies last.
i. Ex: H has prior marriage and family with kids. H
remarries. W2 has kids from prior marriage. H and W2
owned a home as TBTE. Upon Hs death, without a will,
his property will go to W2 and then possibly her heirs
not the same heirs of H.)
(2) Simultaneous deathUnless provided for by Will, it passes to
intestacy, possibly to separate groups of relatives.
(3) Divorceupon divorce property converts to tenancy in
common, under which each owners interest is part of his or her
probate estate.
Joint Tenancy with Right of Survivorship:
The surviving tenant takes the property by operation of law.
If there are more than two tenants, the surviving tenants take the
property by operation of law and continue tenancy for the remaining
tenants.
If owners arent married to each other, FL requires there to be
unequivocal language creating a right of survivorship in the
document. Otherwise, it will be treated as a tenancy in common and
decedents share will be subject to probate estate. (**2 or more ppl
then presumption is tenancy in common w/o survivorship unless
otherwise indicated**)
(1) Hypo: Ted owned Blackacre as a joint tenant w/ right of
survivorship with his sister Suzy. In his Will, he devised that
property to his son Junior. Suzy takes blackacre instead of
Junior. If Ted owned no property other than Blackacre then
Junior is disinherited.
Special Rules Governing Survivorship Tenancies:
If two or more persons own a bank account, unless a document states
otherwise, a right of survivorship is presumed to existneed not
contain survivorship language. Presumption is rebuttable only by
proof of fraud, undue influence, or clear and convincing proof of a
contrary intent. FS 655.79
Tenancy by the entirety ownership provides for creditor protection, at
least with respect to creditors of only one tenant.
Deposit accounts made in both married couples names shall be
considered a tenancy by the entirety unless indicated otherwise in
writing. FS 655.79
Pay on Death and In Trust for Accounts
A Pay on Death Account (POD) is created when one person opens and
funds a bank account at a financial institution and designates 1 or more
persons to receive the account assets upon his death. FS 655.82

Page 5 of 97

Winter 2014
Maurer

Professor
Transfer on Death (TOD) refers to securities.
POD is a contract between the owner and financial institution and as such
need not comply with any formalities.
Beneficiaries have no rights to the account until the owners death. If no
beneficiary survives the owner then the account is probate property.
A corporation qualifies as a person and thus may be the beneficiary of a
POD account. FS 655.82
Life Insurance Proceeds
A life insurance is a contract between the policy owner/purchaser and the
insurance company that issues the policy.
If the decedents estate is specifically made a beneficiary, those proceeds
will be included in probate estate (i.e. life insurance proceeds).
There could potentially be 3 persons involved in a life insurance policy:
(1) Policy owner (applies for and pays the policy);
(2) Beneficiary (named by the owner); and/or
(3) Insured (the person whose death causes the ins. company to pay
the policy proceeds to beneficiary).
To determine if a life insurance policy or its proceeds are probate property,
you must identify each applicable person and ascertain who is deceased.
Generally, policy proceeds arent included in probate estate, even if
insured owned the policy, because she didnt own the proceedsthose are
paid out upon death to beneficiary.
Pensions and Other Retirement Assets
If the designated beneficiary is not the owners estate and survives the
owner, then the beneficiarys rights to the account vest upon the owners
death. (Proceeds paid directly to beneficiary)
Proceeds pass by virtue of contract between the owner and plan
administrator.
Annuities
Fixed Annuity: where the issuer agrees to pay a set or fixed return to the
owner.
Variable Annuity: where the issuer invests the monies paid by the owner.
Because the annuity fluctuates in value, payments to owner will also
fluctuate.
If the annuity policy is payable only during the annuitants life, payments
terminate when the annuitant dies but any payments due to annuitant will
be included in the probate estate (absent a designated beneficiary).
Annuitant can choose a beneficiary to receive remaining value upon his
death. If beneficiary survives the annuitant, the values are not subject to
probate estate.
Property Subject to a Power of Appointment: When the property owner
decides to give someone else the power to select the beneficiaries (instead of the
owner selecting them himself).
The person making the decision holds the power of appointment over the
property (having an interest in the property is not required).
Owner can decide whether he wants the power exercised during his life, at
death, or at all times.
Even if power holder exercises the power at death, the property is not part
of a probate estate (unless the holder exercises it in favor of the estate).
Transfers before Death

Page 6 of 97

Winter 2014
Maurer

Professor

Property that was irrevocably transferred before death is excluded from

the decedents probate estate because decedent no longer owns that
property.
If a donee is a minor, instead of making an outright transfer the donor
could:
(1) Make a transfer in trust; or
(2) Choose to transfer property to the minor pursuant to the FL
Uniform Transfers to Minors Act (FUTMA).
Under FUTMA, the donor transfers the property to a custodian, who holds
it for the minor. Even if the donor serves as the custodian, the property can
be excluded from donors probate estate.

Chapter 2: Intestate Estates

I. Intestate Succession: When a decedent dies without effectively disposing of his property by
will, it is said that he died intestate and thus his property is governed under the laws of
intestacy.
Occurs when decedent dies either: (1) without a will; (2) having revoked a will; or (3)
having executed a will that was later held to be invalid.
Partial Intestacy: If a Will effectively disposes of some property and not others, the
others probate assets will pass to the decedents heirs under intestacy. (can be
avoided by incorporating a residuary clause with alternative takers)
Decedents wishes are not adhered to under this succession because its governed by
law.
Upon decedents death, heirs must show that they are the closest relative to the
decedent under the statute that is entitled to receive, and that after diligent search no
valid will exists.
o Ex: Fred is dead. Wife died before Fred. Children looked for a will and couldnt
find anything. The children filed a petition to have the court open a probate for
the estate because they know Fred has no other kids. Then Charlotte comes
along and says she is the oldest child of Fred. Charlotte would have to prove
relationship.
Someone having a right under intestacy has a right over a percentage of the entire
estate not individual assets.
A. Statutory Distribution Pattern: As a general rule, an intestate estate passes to those
designated under Fla. Statute 732.102 (spouse), .103 (heirsascendants and
descendants), .105 (half blood), .106 (afterborn), and .107. (escheat).
Surviving Spouse
i. Status as Surviving Spouse FS 732.102
o A surviving spouse is the first takerirrespective of the length of
marriage, quality, cohabitation, or separation.
o Surviving spouse may have rights in addition to intestacy such as to:
homestead, family allowance, elective share, etc.
o Estoppel: Is appropriate when a spouse has completely repudiated
the marriage by subsequent conduct that is inconsistent with being
married to the intestate.
Ex: In re Estate of ButlerHusband and wife separated.
Husband told Wife that he bought a divorce. Wife failed to
inquire further. 28yrs later, after they had remarried, Husband
dies and W1 finds out that divorce was not real. W1 tried to
Page 7 of 97

Winter 2014
Maurer

Professor
claim his estate as surviving spouse. The court held that after
taking advantage of the divorce that Nathaniel told her he
had bought, Georgia could not now claim the benefits of a
marriage, which she herself has repudiated by her subsequent
conduct. She abandoned the marriage relationship and is
estopped from asserting rights under the marriage.
o Where the parties acted in good faith in attempting to comply with the
statute for getting married, but it is later found that the marriage is
void due to a clerical error (out of the parties control), the court will
find the marriage to be valid. (Ex: Haal v. Maal, case where parties
failed to file the license with the clerk and court held marriage was
invalid due to their failure to comply with statutory requirements)
o A surviving spouse is not entitled to any part of a decedents intestate
estate if the marriage is found to have been procured by fraud,
duress, or undue influence. FS 732.805
Exception: If the spouses voluntarily cohabited as husband and
wife for a period of time with full knowledge of the facts
constituting the fraud, duress, or undue influence or both have
subsequently ratified the marriage.
If someone contests and asserts that the marriage was
procured by fraud, undue influence or duress; he must prove
the assertion by a preponderance of the evidence. If
subsequent ratification, then spouse has to prove by
preponderance of the evidence that marriage was indeed
subsequently ratified. (Prevailing party pays all fees. If claimant
wins spouse is left with nothing.)
o Common law marriages: No longer recognized by Florida. However, if
the marriage was entered into in Florida when such marriages were
recognized as valid then it remains valid. Additionally, if its valid in
another jurisdiction then it will be recognized in Florida, unless doing
so is against public policy.
o Same Sex Marriage: Florida does not recognize same sex marriages
procured in another state because they are contrary to public policy.
ii. Share of Surviving Spouse FS 732.102It is presumed that the surviving
spouse will take care of the children in common.
o (1)If there is no surviving descendant of the decedent, the surviving
spouse takes the entire intestate estate.
o (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 surviving spouse takes the
entire intestate estate.
o (3)If there are one or more surviving descendants of the decedent
who are not lineal descendants of the surviving spouse, the surviving
spouse takes one-half of the intestate estate.
o (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, the surviving spouse takes one-half of
the intestate estate.
i. Ex. If decedent dies with $120k, 2 children (A&B),
surviving spouse has 1 child from prior marriage.
Page 8 of 97

Winter 2014
Maurer

Professor

Surviving spouse takes and A and B get the remaining

per stirpes.
o Note: Dissolution of Marriage pending does not impact the surviving
spouses rights under the law. (Even though divorce is pending, if
client dies, the other party still gets rights as a spouse.)
o Once divorce is finalized, if the decedents Will refers to his spouse, all
the provisions in the will are read as if the spouse died before the
decedent.
Share of other heirs. FS 732.103The part of the intestate estate not passing to
the surviving spouse, or absent a surviving spouse, descends as follows:
Descendants
o If a decedent is survived by descendant, they receive whatever
portion of the estate is not allocated to the surviving spouse.
o A descendant is a person in any generational level down the
applicable
individuals
descending
line,
including
children,
grandchildren, and more remote descendants.
o The term Child excludes a stepchild, foster child, grandchild, or
more remote descendant.
Parents
o If decedent is not survived by a spouse or descendants then the
decedents parents will be next to inherit.
o If both of decedents parents survive then they each get 1/2 of the
estate. If only one survives then they receive the entire estate.
o Parent does NOT include stepparents or foster parents.
Siblings and their Descendants
o If decedent has no surviving spouse, descendants, or parents, the
decedents brothers and sisters divide the estate in 1/2.
o If a sibling who predeceased the decedent is survived by descendants,
those descendants take that siblings share. (i.e. nieces/nephews of
decedent)
o Siblings and their descendants are collateral heirs. (stem from the
same parent or grandparents.)
Paternal and Maternal Kindred (Grandparents)
o If decedent has no surviving spouse, descendants, parents, siblings, or
siblings descendants then estate is divided equally between the
grandparents.
o Kindred covers the decedents grandparents and their descendants.
Including: aunts, uncles, cousins, and descendants of cousins who are
related by blood (consanguinity) not marriage (affinity).
o Grandparents come first. If no grandparents then to uncles, aunts,
cousins, etc. (respectively)
Hypo: D has $100k in his estate. If D has no siblings then the
estate is divided $50k to maternal side (grandma) and $50k to
paternal side (grandpa). On mothers side grandma is the only
one alive. On fathers side, grandparents are dead but the
fathers 2 brothers and sisters are alive. The uncle and aunt
would take the $50k per stirpes.
Family of the Decedents dead spouse FS 732.103(5)
o The kindred of the decedents last deceased spouse (i.e. in laws),
would inherit as if the deceased spouse had survived the decedent,
inherited the estate, and then died intestate.
Page 9 of 97

Winter 2014
Maurer

Professor

Notes:
Its not enough to just say you are related to decedent. The relationship
must be proven by a preponderance of the evidence. There is a rebuttable
presumption that anyone who dies is survived by heirs. It is not presumed
that those who claim to be related actually are. Thus, those claimants must
prove that: (1) they made a diligent search and inquiry (2) there are no wills,
heirs, surviving spouse; and (3) that anyone before them that would have
taken as an heir is dead.
State v. Rudawski (In re Estate of Tim): Rich Russian immigrant dies
intestate and various families sharing his name back in Russia claiming
inheritance. The State didnt find evidence that these people were heirs
after diligent search and inquiry. The court held that while there is a
presumption that there is somewhere some one next of kin to every
decedent, there is no presumption that any particular persons are his next of
kind, or that his next of kind are ascertainable. The states burden is met
when, in addition to proof of the actual death, non-marriage, and intestacy of
the decedent, it has been shown that after diligent search and inquiry the
state has been unable to find that he left ascertainable heirs. Any other rule
would render an escheat impossible if the state had to prove that every
claimant was not an heir.
II. Intestate Distribution Scheme
A. Floridas Distribution Scheme
Per stirpes systemDivision is made at the first level of descendants regardless
of living or dead.
i. Under pure per stirpes (Minority RuleFlorida): Florida divides at the
first level of descendants regardless if they are alive or dead. The intestate
estate is divided into as many equal shares as there are: (1) surviving
members in the generation nearest to the decedent; and (2) deceased
members in the same generation who left surviving descendants. (So kids
would get their dead parents shares of the estate) **Pro-grandkids of
decedent**
ii. Per stirpes by per capita representation (Majority Rule): Other states say
that if the heirs fail to survive them then the division is divided at the next
level where there are survivors. (If K and B are dead then their kids take
their share. But if K lives and B dies then K takes it all.) Division is made in
equal shares at the first level of living descendants. **Anti-grandkids of
decedent**
iii. Ex: An intestate outlived his children and was survived only by
grandchildren; the grandchildren take the share their deceased parent
would have received. If the intestate had outlived two children and the elder
deceased child had two children and the younger deceased child had one
child, the estate would be divided into two equal parts. Each of the elder
deceased childs two children would receive one quarter of the estate. The
only child of the younger deceased child would receive one half of the
estate.
Notes:
i. A person who is absent from the place of his last known domicile for a
continuous period of 5 years and whose absence is not satisfactorily
explained after diligent search and inquiry is presumed to be dead. Unless
there is evidence showing that the absent person was exposed to a specific
peril of death (natural disaster). At that point there may be sufficient basis
Page 10 of 97

Winter 2014
Maurer

Professor

for the court to determine that the person died less than 5 years after the
date on which his absence commenced.
ii. Any unclaimed property in the hands of a PR that cannot be distributed or
paid because of the inability to find the owner, because no owner exists or
because the owner refuses to accept it shall be deposited with the clerk of
courts, to be deposited later in the State School Fund. Upon proper request
and proof of entitlement to the funds, any person may request the funds
back within 10 years of being deposited. After that, the funds would escheat
to the State.
iii. In Florida, a testator cannot disinherit an heir unless his will provides for a
substitute taker of his estatestating in the will that he does not want his
son to inherit from him would not be enough.
iv. Before the intestates death, which is the event that vests an heirs interest,
the people that will be entitled to distribution of an estate will only have an
expectancy. However, once the assets are distributed, they are treated as if
the beneficiary owned the property at the time of the decedents death.
III. Special Circumstances
A. Adoption (statutory creaturedidnt exist at common law) FS 732.108
General Rule: The adopted person is a descendant of the adopting parent and the
kindred of the adopting familyand is not a descendant of his natural parents nor
can the natural parents inherit from his, except that:
i. Adoption of a child by the spouse of a natural parent has no effect on the
relationship between the child and the natural parent or the natural parents
family. FS 732.108(1)(a);
(i.e. M has a prior child and marries H. H adopts her prior child. M
dies. Child can still inherit from M.)
Ex: Kay v. Swartz, where Decedent died with only a brother who had
2 kids (Paul and Zena). Zena predeceased the decedent but was
survived by her adopted child Perry. Zenas husbands new wife
adopted Perry after Zenas death. The court held that Perry still had
the right to inherit from his mother since the Husband remarried after
her death and the new wife adopted the child thereafter as well.
Ex: Huskea v. Doody, decedent had a kid with a woman. The woman
married and her husband adopted the child. The natural father later
died. PR to decedents estate filed petition to determine who the
beneficiaries are under the law. The court held that the right of a child
to inherit from his father does not commence until after the death of
the father. Consequently, the law in effect at the time of decedents
death is what controls.
ii. Adoption of a child by a natural parents spouse who married the natural
parent after the death of the other natural parent has no effect on the
relationship between the child and the family of the deceased natural
parent; F.S. 732.108(1)(b)
(i.e. M and H had a child. M died. H remarried and W2 adopted the
child. Ms family member died. Child can inherit from Ms deceased
family member if AFTER M died, H married W2 and W2 adopted the
child.)
iii. Adoption of a child by a close relative (sibling, grandparent, aunt or uncle)
has no effect on the relationship between the child and the families of the
deceased natural parents. (F.S. 732.108(1)(c)
Page 11 of 97

Winter 2014
Maurer

Professor

(i.e. Child is adopted by his own family)

iv. Except: Where the missing parent gives up all rights to the child. The child
will have nothing to do with that parent.
Equitable (Virtual) Adoption (Common law creature)
i. Equitable (or virtual) adoption for purposes of intestate succession requires
the following elements to be proven by clear and convincing evidence:
1. An agreement to adopt a child between the natural parents and the
alleged adoptive parents;
2. Performance by the natural parents in giving up custody of their child;
3. Performance by the child by living in the home of the alleged adoptive
parents;
4. Partial performance by the alleged adoptive parents in taking the child
into their home and treating him as their child; and
5. Intestacy of the alleged adoptive parents.
ii. Clear and convincing evidence: where every other possible outcome is
negatedhaving a firm belief that there is only one conclusion.
iii. If the equitably adopted child can prove the elements, he would be entitled
to such rights from the estate as a legally adopted child would have because
equity considers done what needs to be done. (See Williams v. Estate
of Pender p.45)
iv. For legal purposes, the finding of someone to be equitably adopted does not
equate to legal adoption.
v. The Fifth DCA said in dicta that an equitably adopted child could still inherit
from his natural parents.
vi. There doesnt seem to be a time limit for asserting a right under Equitable
Adoption but it should be done during the probate proceeding.
B. Children Born Out of Wedlock
There is no issue concerning the rights between a child and his mother, and his
mothers family, the issues are concerning the rights of inheritance between the
child and the purported father, because paternity needs to be proven.
Rule: There is a strong presumption that a child born of a mother while married is
the husbands child.
A child born out of wedlock, who is thereafter adopted, is no longer subject to the
rules of illegitimacy but rather adoption.
Florida provides several means of establishing paternity for purposes of
inheritance:
i. When the parents of the non-marital child entered into a marriage
ceremony, even if it was void, regardless if the marriage was performed
before or after the childs birth. F.S. 732.108(2)(a)
The void marriage or annulment would not make the child
illegitimate.
ii. When paternity is adjudicated in court before or after the death of the
father; F.S. 732.108(2)(b) or
iii. When the father acknowledges paternity of the child in writing. (F.S.
732.108(2)(c)
Ex: Brown v. Johnson, where court held that in order to establish
paternity after the death of the alleged father, the evidence must be
clear and convincing. A letter referring to kids as grandchildren is
insufficient.
C. After-born Children FS 732.106
Afterborn children are those children conceived prior to, but born after, a
decedents death. (Child must be born alive) A child may be in gestation at the time
Page 12 of 97

Winter 2014
Maurer

Professor

of a decedents death. (Legally treated as if they had been born prior to decedents
death, thus they are eligible to inherit.)
D. Half-blood Heirs FS 732.105
Half blood relatives are heirs related to the decedent through one common parent
or grandparentoccurring only with collateral heirs, not with descendants or
ancestors. (e.g. half blood brother/sister or half blood uncle/aunt)
Each half blood heir shall inherit only 1/2 as much as a whole blood heir. If only
half blood family members survive, shares are equal.
i. To get the amount, double the amount of whole bloods that there are and
add the amount of half bloods there are. Then divide it by the monetary
amount to be taken. The total will be what each half blood will get. (i.e. 2
whole + 3 half = 7 divided by $X = the total will be what each half blood will
get).
UPC treats half blood and whole blood relatives equally for purposes of inheritance
rights.
E. Children Born of Assisted Reproductive Methods FS 742.17
When a child was conceived from the eggs or sperm of a person who died before
the transfer of their eggs, sperm, or pre-embryos to a womans body. The child
shall not be eligible for a claim against the decedents estate unless the child is
provided for by the decedents will. The couple and the treating physician shall
enter into a written agreement providing for the disposition of the couples eggs,
sperm, and preembryos in the event of a divorce, death, or any other unforeseen
circumstance.

Chapter 3a: Appointment of Personal Representative and Formalities of

Execution
I. Appointment of Personal Representative
- A PR is necessary for both testate and intestate estates and is in charge of administering
the probate estate (and nothing else).
- The intent of the testator as expressed in the will controls the legal effect of the
dispositions. The rules of construction will apply unless a contrary intention is indicated
by the will. A will is construed to pass all property that testator owned before and after
execution of the will. FS 732.6005
- When there is a dispute as to who is to be appointed PR, the court may appoint a curator
to administer the estate until the dispute is resolved.
A. Qualifications of Personal Representative
Individuals, trust companies, and certain other entities designated in the statute
may be qualified to serve as PR.
i. Trust companies and other entities, including banks, must be authorized
and qualified to exercise fiduciary companies. Fla. Statute 733.305(1)
The following cannot be PR under Florida statute:
i. Convicted of a felony
There are times when a convicted felon may serve. (i.e. when crime is
something that wont effect the administration of an estate, or when
the charge is brought during the proceeding)
ii. Mentally incapacitated
iii. Under age 18
iv. Non-Florida residents (unless close family relationship to decedent)

Page 13 of 97

Winter 2014
Maurer

Professor

***If however, the proceeding is coming to an end and the parties dont have an
issue with the reason for disqualification, they may agree to let the PR
continue.***
Qualifying relationships are the decedents:
i. legally adopted child/parent
ii. a relationship by lineal consanguinity to the decedent (e.g. his parent, child,
or grandchild);
iii. the decedents spouse, siblings, aunt, uncle, niece, nephew or someone
related by lineal consanguinity to any such person; or
iv. the spouse of any of the foregoing persons.
*** Appointed PRs shall notify the parties and the court if at any point they
become unqualified to serve as PR.***
The appointed personal representative need not be a beneficiary of the estate.
Until a court appoints a curator, or personal representative no one is allowed to
touch the decedents things. They cant stay in the home, empty their pockets, take
anything from them, or anything; doing so is a tort. (executor de son tort)
i. Exception: If property is being violated by another. PR has the right to
intrude and call proper authorities.
PR then has to place the advertisement telling all interested parties of their rights
to file a claim. A good faith effort must be made to notify interested parties.
In Florida, PRs MUST have legal counsel at all times. A PR has the right to hire
ANY attorney they please regardless of what the Will says.
Everybody is free from taking the PR job, but once the person is appointed, he
cannot waive the task without the judges authorization.
B. Priority in Appointment as Personal Representative (Letters of administration)
If decedent died testate:
i. Testator may nominate one or more qualified PRs and his wishes will be
respected. A nominee may decline to serve as a PR.
ii. If no qualified person nominated in the will is able to serve, the beneficiary,
or group of beneficiaries, who will receive the majority (in interest) of the
probate estate (may be one or more than one person) may agree on a person
to be appointed personal representative.
Hypo: If decedent leaves estate in equal shares to her 5 children.
Then 3 of them need to get together and vote.
Hypo: If decedent leaves estate 50% to wife and the rest to 2 kids.
One of the kids needs to get with mom to vote.
iii. If no PR is appointed based on a nomination in testators will or selection by
those in majority interest, the court may appoint any qualified beneficiary
named in the will who is willing to serve. If more than one beneficiary seeks
to be appointed, the court is to select the ONE who is best qualified.
If decedent died intestate:
i. The interstates surviving spouse has priority to serve as a PR.
ii. If there is no surviving spouse or the spouse declines, a person selected by a
majority in interest of the heirs will be appointed.
iii. Absent and agreement, the heir who is nearest in degree to the intestate has
the next priority.
iv. If several heirs who are of the same degree of relationship to the intestate
seek appointment, the court will select the best qualified.
If an individual designated as PR or with the right to select one is incompetent, a
court appointed guardian of that persons property may nominate a new PR.
In either a testate or an intestate estate, if no volunteers or previous guardians,
then court shall appoint a capable person; but no person may be appointed if:
Page 14 of 97

Winter 2014
Maurer

Professor

i. They work for or holds public office under the court; or

ii. They are employed by or hold office under any judge exercising probate
jurisdiction.
If anyone thereafter is found to qualify as PR and want to or subsequent will is
admitted to probate, then the prior letter of administration may be revoked and
new one heard and issued.
C. Removal of Personal Representative
A PR may be removed (in addition to any penaltiesif applicable) for any of the
following causes: Fla. Statute 733.504
(1) Adjudication that the PR is incapacitated.
(2) Physical or mental incapacity rendering the PR incapable to discharge his or
her duties.
(3) Failure to comply with any order of the court, unless the order has been
superseded on appeal.
(4) Failure to account for the sale of property or to produce and exhibit the
assets of the estate when so required.
(5) Wasting or maladministration of the estate.
(6) Failure to give bond or security for any purpose.
(7) Conviction of a felony.
(8) Insolvency of, or the appointment of a receiver or liquidator for, any
corporate PR.
(9) Holding or acquiring conflicting or adverse interests against the estate that
will or may interfere with the administration of the estate as a whole. This
cause of removal shall not apply to the surviving spouse because of the
exercise of the right to the elective share, family allowance, or exemptions.
(10) Revocation of the probate of the decedents will that authorized or
designated the appointment of the PR.
(11) Removal of domicile from Florida, if domicile was a requirement of initial
appointment.
(12) The PR would not now be entitled to appointment.
D. Bonds:
Fiduciary bondpersons who want to be PR are required to get a bond with
surety (insurance to the assets), in case PR runs away with the money. FS
733.402
Some wills contain a provision waiving the requirement of PR bonds. (Although the
judge can strike it if he feels a bond is necessary)
Judges typically look at the value or nature of the assets in determining the amount
of the bond required.
Another solution can be asking the judge to require a depository account (creature
of Florida statute) and opening of a deposit box at a determined bank. Judge enters
an order requiring the account to be opened. Anything can go into the account but
nothing can come out without a court order. FS 69.031
Testator could also require that PR keep precious art or other memorable things in
the vault of a specific bank.
E. Special Rules
Deference is given to an appointment by a testator. As long as they qualify under
the statute the court has no discretion to remove them. (See, Werner v. Estate of
McCloskey)
Executor de son tort: Any person taking, converting, or intermeddling with the
property of a decedent shall be liable to the PR/curator, for the value of all the
property so taken or converted and for all damages to the estate caused by the
wrongful action. FS 733.309
Page 15 of 97

Winter 2014
Professor
Maurer
A persons actions can constitute a waiver of their right to serve. (i.e. inaction,
estoppel of previous spouse)
i. Ex: Will says Amy is nominated PR. Amy however, is doing nothing with the
Will after decedents death. Maria sees that (and doesnt like Amy) and takes
the will, petitions for it to be admitted to probate and requests that Bob (the
alternate nominee) to be appointed PR AND serves Amy with the notice.
Amy doesnt do anything. That can be constituted as a waiver.
ii. Ex: A couple was married. They separated but never divorced. They remarried others. Husband died and 1st wife wants to serve as PR stating she
is his wife. She is estopped from doing so and when she re-married she
waived the rights to serve. Because they repudiated their marriage.
iii. Ex: A couple was married and husband was incarcerated for a long time.
While in prison, the wife re-married (without divorcing). When husband died
she wanted to be PR to his estate as surviving spouse. Court said she
repudiated the marriage and thus is estopped from asserting such a right.

Chapter 3b: Formalities of Will Execution

I.

Execution of Wills
A. 4 Statutory Requirements (Same formalities for codicils)
Will must be in writing (handwritten, typed or printed)Florida doesnt
recognize oral wills (nuncupative wills) or non-attested wills (holographic wills)
i. NuncupativeAllowed in a Minority of jurisdictionsrequires witnesses to
the oral declaration and allowed only under exigent circumstances such as
last illness or member of armed forces serving in conflict.
ii. HolographicAllowed in a Majority of jurisdictionssome require them to
be entirely in the testators handwriting and signed by the testator,
otherwise could be invalidated. Others, such as the UPC, are less restrictive;
allowing an unattested written will as long as the signature and material
portions of the document are in the testators handwriting.
Testator must sign at the end of the will. Alternatively, the testator can direct a
proxy to sign on his behalf but he/she must sign before the testator (proxy doesnt
need to include his/her name but it is advisable to).
i. Voluntarily and freely.
ii. Natural end is after the dispositive provisions or administrative provisions
rather than the physical end of the document.
iii. Signature need not be the full name or anything special. Can be a mark. So
long as they intended that to be their signature and that it serves to execute
their wishes under the will.
iv. Ex: In re Schieles EstateSigning after the attestation clause is not the
end of the will according to statute.
v. Ex: Bradley v. BradleySince the notary signed where the testatrix should
have, the only place to sign was where the notary was to sign. The fact that
the notary apparently again signed under testatrixs signature evidences
their intent to authenticate the instrument as a completed expression of her
testamentary purposes.
Testator must sign in the presence of at least 2 witnesses.
i. Testator or proxy can sign in private, but if so, testator must appear before
the witnesses and attest that the signature was his.
ii. Some states require publishing of the will. Publication of a will means that
the testator tells the witnesses that they are indeed witnessing the signing
Page 16 of 97

Winter 2014
Maurer

Professor

of the will for it to be valid. Florida does not have this requirement. See, In
re Estate of Watson
Witnesses must sign in the presence of the testator and each other.
Witnesses have 2 duties:
i. Actually witnessing the signing of the will (or acknowledgement by testator);
and
ii. They must sign the will attesting to that fact.
iii. Witnesses, per Florida statute, must sign their full name.
iv. Witnesses can sign anywhere on the will. Statute doesnt require any
specific place.
v. Presence requirement depends on jurisdiction:
Line of vision test (Florida recommended)requires each party be
capable of seeing the other in the act of signing. The testator does not
actually have to see the witnesses sign, but must be able to see if
the testator were to look at the witnesses in the act of signing. But if
something is blocking his view then the test fails.
Conscious presence test requires only that a party mentally
perceive that another is signing, without the need to actually be
capable of seeing the other person. Under this test, the witness is in
the presence of the testator is the testator, through general
consciousness of events, comprehends that the witness is in the act of
signing. Consciousness of the fact that the attesting signatures are
being written is an indispensable requirement.
*** For blind persons, courts in line-of-vision jurisdictions will
usually hold that if the blind person is conscious of what is
going on around him or her, attestation made within his or her
range of touch and hearing is valid***
Will means an instrument, including a codicil, executed by a person that disposes
of the persons property on or after his death. Including instrument that merely
appoint a PR or revokes or revises another will.
Any person who is of sound mind and is 18 or more years of age or an emancipated
minor may make a will. FS 732.501
A will is void if the execution is procured by fraud, duress, mistake, or undue
influence. Any part of the will is void if so procured, but the remainder of the will
not so procured shall be valid (if it is not invalid for other reasons). (Same applies
to revocations of a will) (Case law refers to mistake in the execution only.) FS
732.5165
A will executed by a non-resident of Florida that is valid in accordance with the law
of the jurisdiction where executed will be valid in Florida.
B. Qualifying as a Witness
Anyone competent to be a witness, including beneficiaries of a will may serve as a
witness.
i. Competency is judged by the persons ability to understand and be
understood concerning the witnessing of the will.
ii. A will or codicil, or any part of either, is not invalid because the will or
codicil is signed by an interested witness.
iii. Disqualification of witnessA person is disqualified from testifying as a
witness when the court determines that the person is: FS 90.603
Incapable of expressing himself or herself concerning the matter.
Incapable of understanding the duty of a witness to tell the truth.

Page 17 of 97

Winter 2014
Maurer

II.

III.

IV.

V.

Professor

iv. Although a beneficiary may serve as a witness, using interested party carries
several risks. (e.g. will challenged for undue influence by the
beneficiary/witness)
A notary can be a witness. A notary signature can automatically substitute for a
second witness (i.e. if the notary signed in the presence of the testator and other
witness). However, for a self-proof affidavit they cannot. See, Simpson v.
Williamson
Testimonium and Attestation Clause
Although not required, the testator may add a testimonium and an attestation clause
to the will.
An attestation clause states the basic facts that occurred during execution of the will.
It may also include the number of pages to the will. (Example on pg. 61)
Self-Proof Affidavit and Admitting Will to Probate
The self-proof affidavit is sworn testimony that the execution of the will complied with
Florida law and that the will is the testators. The statutes provide that this affidavit
may be signed at the time of the execution of the will or at a later date. Although not
required, it is strongly recommended. (valid if self-proved in another state)
When a will is admitted to probate for validation, the court requires sworn testimony
of the witnesses as to the wills execution. The self-proof affidavit is a tool that makes
admitting the will to probate more efficient. Executing is at the same time as the will
is thus highly advisable.
If the validity of the will is contested, the proponent has the burden of establishing
prima facie that the will was properly executed and attested. However, validly
executed self-proof affidavit establishes prima facie the formal execution and
attestation of the will.
Gifts to Lawyers FS 732.806
Any part of a written instrument which makes a gift to a lawyer or a person related to
the lawyer is void if the lawyer prepared or supervised the execution of the written
instrument, or solicited the gift, unless the lawyer or other recipient of the gift is
related to the person making the gift.
Integration
A will is a single, integrated expression of the clients dispositive plans.
Conditions precedent are okay in a will, but subsequent are very difficult to enforce
after death (unless left in a trust).
Notes:
A validly executed military testamentary instrument will be admitted as a
valid will in Florida. So long as the testator signs it, in the presence of a military
legal assistance counsel, and attested by 2 witnesses.
Holographic and nuncupative wills are not recognized in Florida.

Chapter 4: Testamentary Capacity and Undue Influence

I. Requirements for Testamentary Capacity

A. Age or Emancipation: To execute a valid will, the testator must be at least 18 years old
or an emancipated minor.
This requirement must be satisfied at the time of signing the will.
Emancipation can occur through marriage or court order. An emancipated minor,
as a result of marriage, does not lose his status after getting divorced, or once his
spouse has died.
Page 18 of 97

Winter 2014
Professor
Maurer
B. Sound Mind: The standard to determine if testator had the requisite testamentary
capacity is determined by case law.2
The general rule is that all testators are presumed to have testamentary capacity.
The presumption of lack of testamentary capacity, created by incompetency
adjudication, is only overcome by proof that the will executed after such
adjudication was signed during a lucid interval.
The proponent of the will executed during the continuance of the adjudication has
the burden of proving that it was executed during a lucid interval.
The presumption of sanity switches when the decedent had been declared
incapacitated. In such case, there would be a presumption of incompetency and
the burden of proving testamentary capacity is placed on the proponents, rather
than in the challengers of the will.
Courts will look at 3 things to determine testamentary capacity. Whether the
testator understands:
i. 1. The nature and extent of the property to be disposed of; (what he/she
owned, value of it)
ii. 2. The testators relation to those who would naturally claim a
substantial benefit from the will;
iii. 3. That the document signed would give away his estate upon her death;
and
iv. 4. The practical effect of the will as executed, that those not included in
the will, will not share on his estate. (Knows how and who will be effected
under the willimportant when disinheriting someone)
A testators capacity is determined at the time of signing.
i. Even if the capacity of the testator is questionable, if it was executed during
a lucid interval, it would be valid.
Lucid interval is a period of time during which the testator returned
to a state of comprehension and possessed actual testamentary
capacity. (Very difficult to prove but is possible.)
Ex: Skelton v. Davis, where a will lessening the number of devisees
on her prior will was allowed into probate because the testator
explained she wanted to disinherit some of her children for having
mistreated her. The court observed that she knew the nature of the
instrument, the identity of her heirs, and the effects of her will.
***EXAM NOTE: Create a time line when sound mind is in question***
On the other hand, a will may be stricken if is the product of an insane delusion
of someone with capacity.
i. Insane delusion is a spontaneous conception and acceptance as a fact, of
that which has no real existence except in imagination. The aberration must
be such as indicates a diseased or deranged condition of the mind.
ii. Ex: See, Edwards v. Citizens National Bank of Leesburg holding that
any belief that arises from reasoning based upon a known premise, however,
imperfect the process may be or however illogical the conclusion reached, is
not an insane delusion. An insane delusion requires such belief to arise from
a premise that has no real existence except in imagination.
Notes:
i. Alcoholics, drug addicts, prescribed narcotic users do not lack testamentary
capacity per se.

2 Florida refers to the testators mental state as capacity and not incompetence.
Page 19 of 97

Winter 2014
Maurer

Professor
ii. Circumstances that would be looked at are the age of the testator, its
appearance, health, what happened before or after, if the person drove to
the law office to sign his will, if they exhibited an odd behavior.
iii. Gifts cannot be left to incompetent people. But can be left to a trustee to
hold for the benefit of the beneficiary to be used as testator indicates.
iv. Clients may be extrinsically peculiar and wacky but still doesnt determine
their testamentary capacity.
v. Interested parties is defined as any person who may reasonably be
expected to be affected by the outcome of the particular proceeding
involved. The term may vary and includes PRs and trustees but not
beneficiaries that have received full disbursement of benefits. FS 731.201
vi. If there is lack of testamentary capacity, the will is totally invalid. No part of
it would be valid.
vii. An unnatural disposition does not in and of itself signify a lack of
testamentary capacity. (ex. Just cause collateral relatives were preferred to
the grandchildren may be unusual but testator has all the right to dispose of
his property as such.)
viii. In terrorem or no contest clause: is a provision in the will that
punishes the beneficiary who undertakes to contest the will. It is not
enforced in Florida.

II. Undue Influence

Elements to proving Undue Influence:
i. There was influence exerted on the testator,
ii. The effect of the influence was to overpower the testators free agency;
and
iii. The product of the influence was a will that would not have been
executed but for the influence.
Raising a presumptions of undue influence(need all three) Contestant must
establish that the beneficiary:
(1) Was a substantial beneficiary
Getting the lions share of the will.
Some of the factors that weigh in favor of finding one are: that he is
the only beneficiary, that he obtained substantially more than what
would have received in intestacy, that he got significantly more than
others in the same degree of relationship, that he got significantly
more than what he got in previous wills, etc.
Third Party Beneficiary: A person can either be the direct or 3rd party
beneficiary to raise a presumption and meet this element.
(2) Occupied a confidential relationship with the testator; and
Decedents family members are not the only individuals whose
relationship to the decedent might be considered confidential. Others
may have such a relationship including decedents physician, attorney,
religious advisor, or even household employee.
A spouse is immune from the presumption of undue influence,
EXCEPT if the marriage was procured by fraud, undue influence, or
other such means. UNLESS specified acts of ratification occurred
after the marriage.
If challenge is based on spouse being guilty of undue influence,
person contesting will based on undue influence must present direct
evidence not just a presumption.
(3) Was actively involved in procuring the will.
Page 20 of 97

Winter 2014
Maurer

Professor
7 factors to consider when active procurement of a the will :
(1) presence of the beneficiary at the execution of the will;
(2) presence of beneficiary on those occasions when the testator
expressed a desire to make a will;
(3) recommendation by the beneficiary of an attorney to draw the
will;
(4) knowledge of the contents of the will by beneficiary prior to
execution;
(5) giving of instructions on preparation of the will by the
beneficiary to the attorney drawing the will.
(6) Securing of witnesses to the will by beneficiary; and
(7) Safekeeping of the will by beneficiary.

***If the will is the product of undue influence, it can be voided in whole or in part.
So, when challenging a will based on undue influence you have to specify if the
whole will was the product of UI, or only some of it**
Standard of Proof: Proponent of the will must overcome raised presumption of
undue influence by a preponderance of the evidence. (See Hack v. Janes)
Once the presumption of undue influence is established, the only burden that shifts
to the beneficiary is to give a reasonable explanation for his or her active role in
the decedent's affairs, and specifically, in the preparation of the will. (the current
rule is that once the presumption arises, the proponent of the will has to prove
there was no undue influence).
Once the presumption arises, the undue influence issue cannot be determined in a
summary judgment proceeding. See RBC Ministries v. Tompkins
Its possible for someone to engage in active procurement of undue influence for
the benefit of another. A parties good faith actions towards the testator do not in
and of itself equate to active procurement. (Ex: Carter v. Carter, where son drove
mother to redo her will, among other errands. Court held those were acts of a
dutiful son and not an undue influencer.)
Notes:
i. An action to contest the validity of a will may not be commenced before the
death of the testator. FS 732.518

III. Attorney-Client Relationship

Because an attorney can abuse a clients confidence or influence a client when
drafting a will, which would constitute a conflict of interests, the law has created a
presumption of undue influence by an attorney who drafted a will whenever the
client makes his attorney a substantial beneficiary of his will, either by devising a
substantial amount of the estate, or by naming him as the estates executor or trustee
(n/a to lawyer being fiduciary; Non-waiveable). FS 732.806
o Exception: When the lawyer or other recipient of the will is related to the
client. These relatives are: spouse, child, grandchild, parent, grandparent, or
other relative with whom the lawyer or the client maintains a close, familial
relationship.
Relatives include in-laws and cohabitants. Gifts include inter vivos gifts.
If a part of a written instrument is invalid by reason of this section, the invalid part is
severable and may not affect any other part of the written instrument that can be
given effect.

Chapter 5: Fraud, Duress, Mistake, Spoliation, and Tortious Interference

Page 21 of 97

Winter 2014
Professor
Maurer
I. Fraud, Duress, and Mistake
A. Fraud: Exists where someone makes a deliberate misrepresentation about a
material fact, expecting or trying to get the testator to act, or not act, in reliance
on that fact and the testator does so.
There are two types of Fraud:
i. Fraud in the execution: Exists where the testator is intentionally misled as
to the contents of the will or pages were switched before the will was
executedThe testator is tricked into signing a will believing it was some
other document or signing a will where the testator believes it says one
thing but it really says something else.)
A court may impose a constructive trust where fraud in the
execution has been found and voiding of the entire will would defeat
the purpose of the testator and have property pass under intestacy.
Thus, the court will order that wrongdoer hold the assets wrongfully
attained for the benefit of the intended beneficiary.
ii. Fraud in the inducement: Exists where the testator was intentionally
misled into forming a testamentary intent that he would otherwise not have
formed.
Standard of Proof: The person contesting the will based on fraud has the burden
of proving it by a preponderance of the evidence.
B. Duress
FS 732.5165 provides the same rules for duress as fraud. Any will executed under
duress is void.
Requirement: Duress, sufficient to invalidate a will or devise, requires a showing
that some threat of physical harm or coercion was made against the testator.
C. Mistake
There are 2 types of Mistakes (only 2 of which can render a will invalid):
i. Mistake in the inducement: Where the testator is induced/influenced to
do something under mistaken belief of fact. (i.e. to disinherit someone that
you think is dead.)
Ex: Dad gives daughter a diamond ring to hold while he is in the
hospital. After he is out she gives it back. Dad has a mistaken belief
that she switched the rock on the ring and has his will disinherit her.
ii. Mistake in the execution: Where the testator executes a will under the
mistaken belief that he is executing another document.
E.g. Mistaken as to the document because T thinks hes signing a
deed when he is really signing a will or T picks up wifes will thinking
it was his and signed it.
Ex: D signed 5-page document, the first 2 are his but the last 3 are of
someone else (the copier mixed the wills up). Nonetheless, the will is
validly executed. The court may void the last 3 pages.
Ex: The decedent didnt know what he was signing and thought he
was giving blackacre to Sue and instead was to Bob.
***Scriveners ErrorDOES NOT invalidate a will*** Ex: Attorney made the
mistake of taking out all dispositive provisions instead of removing just one
provision about one beneficiary. It was a scriveners error and the attorney
appeared and admitted to the error. Court here still denied the mistake.
Fla. Statute 736.0415. Reformation to correct mistakescourts are
legislatively authorized to reform trusts, including testamentary trusts, to correct
mistakes even absent an ambiguity, if there was clear and convincing evidence
of the testators intent.
Page 22 of 97

Winter 2014
Professor
Maurer
A court may reform a will to correct mistakes of fact or law, even without an
ambiguity, as long as there is clear and convincing evidence of the testators
intent. FS 732.615 (**Trust Statute**)
Beyond reformation, wills that are procured by mistake are void, or a provision of a
will is voided.
D. Effect of Voiding Will Provisions
The courts action does not reinstate a devise that allegedly would have been
included but for the wrongdoing. Probate can strike something from a will as a
result of fraud but cannot add any provisions to the will that are not there nor can
the probate court bring into being a will which the testator was prevented from
making and executing by fraud.
Relief should be granted either in the form of:
i. A constructive trustpermitting the fraudulent gift to stand and holding
defrauder as a constructive trustee for the victim of the fraud; or
ii. By giving the aggrieved party an action at law for damages against the
defrauder.
II. Spoliation
A. Spoliation is a post-execution change in the will or codicil by an unauthorized
third person, requiring establishing that an unauthorized change occurred.
(Alteration Same as spoliation but done by the testator. It is not permitted and will
be held invalid.)
B. If the original will terms can be established, the will, as originally written, may be
admitted to probate. (photo copy may be provided as proof)
C. In a case of alteration or spoliation, the court must, to the extent possible through the
reception of relevant and competent evidence, determine and enforce the contents of the
true, unaltered will. An alteration or spoliation specifically does not affect the validity of
the will as originally executed. (See, Lowry v. Roberts)
Malicious prosecution of a will contest: A tort action for a claim to contest a
will without evidence (frivolous law suit).
III. Tortious Interference:
Requirements: Can be established where a person, by his intentional ill motivated
actions, causes the decedent to decrease or eliminate a gift that the decedent has a
fixed and definite intention to make to this beneficiary or person being harmed by
wrongdoers interference. (Test: But-for the interference they would have received gift)
To prevail in a tortious interference with inheritance claim, a plaintiff must establish
that:
(1) The existence of an expectancy (The plaintiff would have received a portion or
greater portion, under the will)
(2) Defendant internationally motivated actions causing decedent to decrease or
eliminate a gift to plaintiff;
(3) Defendants actions were the direct and proximate cause of plaintiffs injury
(But for test)
(4)
Damages
General Rule: You are required to exhaust your remedies in probate before bringing a
tortious interference case.
o Exception:
o See, Neumann v. Wordock, where court held that the general rule applies
unless a probate proceeding will not provide an adequate remedy and tort action
would be proper.
o If the defendant's fraud is not discovered until after probate, the plaintiff is
allowed to bring a later action for damages since relief in probate was
impossible, and fraud in the prevention of the will contest, is one that would
Page 23 of 97

Winter 2014
Maurer

Professor

preclude relief in the probate court. (See, Shilling v. Herrera, case of brother
that hired caretaker for his sister and caretaker ended up convincing sister to
make her sole beneficiary. Hid from the brother the fact that she died until after
probate was complete.)
FS 732.5165 voids any part of the will attributable to the prohibited behavior. As a
result, devises may go to residuary takers or property may pass by intestate or under
prior wills.
A. Notes:
FS 732.517. Penalty Clauses for contestprovisions penalizing an interested
person for contesting a will are unenforceable in Florida. (but are valid in other
states)
FS 732.616. Modification to achieve testators tax objectivesUpon
application of any interested person, to achieve the testators tax objectives the
court may modify the terms of a will in a manner that is not contrary to the
testators probable intent. The court may provide that the modification has
retroactive effect.
FS 732.901. Production of willsCustodian of a will has to deposit it with the
clerk within 10 days of finding out that testator is dead. The Original must be filed
and Clerk will retain and preserve for 20yrs. Failure to file will subject the
custodian to damages (i.e. attorneys fees, costs, etc.)

Chapter 6: Amendment and Revocation; and Disposition by Other Means

I. Terminology
Codicil is a testamentary instrument ancillary to a will that adds to, varies, or revokes
provisions in the will, executed with the same formalities as a will.
II. Revoking or Amending a Will or Codicil
A testator can revoke or amend a will or codicil (in part or whole) by (1) subsequent
writing; (2) by physical act; or dissolution of testators marriage after execution of a will.
It is possible for someone to execute a will with no provision to revoke a previous one. In
that case, the prior wills are not revoked but amended as to the inconsistent provisions.
The testator must have testamentary capacity at the time of the revocation or
amendment.
The revocation of a will, or part thereof, may be challenged on the grounds that the
revocation was procured by fraud, duress, mistake, or undue influence. Claimant has the
burden of proof (Shifts from proponent of the will to claimant)
Where decedent drafted several wills prior to the latest one that serves as proof that the
testator did not want to die intestate.
Revocation of a codicil that amended a will, revives the will provision previously
amended. Revocation of a will whether by writing or physical destruction automatically
revokes all amendment/codicils to that will. FS 732.509
A. Express Revocation by Subsequent Writing
FS 732.505. Revocation by Writing A will or codicil, or any part of either, is
revoked:
(1)By a subsequent inconsistent will or codicil, even though the subsequent
inconsistent will or codicil does not expressly revoke all previous wills or codicils,
but the revocation extends only so far as the inconsistency.
(2)By a subsequent will, codicil, or other writing (i.e. Trust) executed with the
same formalities required for the execution of wills declaring the revocation.
Page 24 of 97

Winter 2014
Maurer

Professor

Hypo: Testator xed over a provision of her testator. Is the will provision revoked?
No. It would be amending but it would be invalid because it requires the same
formalities as execution of a will.
B. Revocation by Inconsistent Subsequent Writing
The testators new Will might not mention any earlier will. If both wills are valid
but have inconsistent terms, the later will revokes the prior inconsistent terms. It
does not revoke the entire will. (the later will resembles a codicil in its effect.)
C. Revocation by Act
FS 732.506. Revocation by ActA will or codicil is revoked by the testator, or
some other person in the testators presence and at the testators direction, by
burning, tearing, canceling, defacing, obliterating, or destroying it with the
intent, and for the purpose, of revocation.
i. The entire document would have to be revoked in this mannernot part of
it. If the will was last known to be in the testators possession (no one
elses possession), a rebuttable presumption arises that the testator
intentionally revoked it. (i.e. writing cancelled all over a will would count
as obliterating or defacing it) Testator cannot rip up a copymust be the
original.
ii. Moneyham v. Hamilton, where testator asked his daughter to get him his
will so he can revoke it. She pretended not to find it and when he died
admitted it to probate. The court held that the frustration of a mere intent to
revoke a will is not sufficient to constitute a valid revocation. The will was
admitted because it would be too much room for fraud to take someone on
their word about a testator wanting to do something that they never got to
do before dying.
iii. In re Estate of Kuhn, testator ripped her will down the middle and kept it
in her safe. The court held that when a testators will is found torn after
death, a presumption arises that the testator tore or mutilated the
testamentary writing with the intent to revoke the same. The presumption of
revocation is overcome by competent testimony.
iv. Partial revocation by alteration must comply with the formalities of
executing a will (i.e. signed by testator at its natural end, witnessed, etc.)
[See, Jones v. Shifflet, testator crossed out provisions of the will and put
names of other people in its place, signed next to the provisions along with
witnesses. Court held partial revocation was not executed with same
formalities as a will.]
Marking up an existing will with notes or other marks will not revoke
or create a new will unless you sign the modified document at the
natural end of the document and have witnesses do the same. (See,
Dahly)
A mere change in the testators family status, such as getting married or divorced,
does not revoke a will. It may however, affect particular devises.
Changes made to a will before execution are valid and do not require compliance
with formalities, however, they may present problems when trying to determine if
changes were made before or after, especially when handwritten.
III. Revival or Republication of Revoked Will or Codicil
FS 732.508. Revival by revocation **FL is an Anti-Revival State**
(1) The revocation by the testator of a will that revokes a former will shall not
revive the former will, even though the former will is in existence at the date of
the revocation of the subsequent will. (Same applies to codicils.)
(2) The revocation of a codicil to a will does not revoke the will, and, in the absence
of evidence to the contrary, it shall be presumed that in revoking the codicil
Page 25 of 97

Winter 2014
Maurer

Professor

the testator intended to reinstate the provisions of a will or codicil that

were changed or revoked by the revoked codicil, as if the revoked codicil had
never been executed.
FS 732.5105. Republication of wills by codicilThe execution of a codicil referring to
a previous will has the effect of republishing the will as modified by the codicil.
Testator can create a codicil reviving a will that was previously revoked. If the codicil is
destroyed the will remains valid.
FS 732.511. Republication of wills by re-execution.If a will has been revoked or if
it is invalid for any other reason, it may be republished and made valid by its reexecution or the execution of a codicil republishing it with the formalities
required by this law for the execution of wills.
IV. Testamentary Disposition Involving Other Documents
A. Incorporation by Reference and Acts of Independent Significance (When a will
references another document)
FS 732.512(1) lets a testator refer to pre-existing writing and incorporate it by
reference into his will.
i. The intention to have it incorporated must be clear, just mentioning it
will not suffice.
ii. The referenced document must be in existence prior to the execution
of the will; and
iii. The document must be clearly described in the will to allow its
identification.
FS 732.512(2) lets the testator dispose of property in a will, based on acts and
events, rather than on a specific devise in the testators will. (The other documents
need not be signed with formalities of a will.)
i. The acts and events must have independent significance,
ii. The acts or events may occur before or after the execution of the will or the
testators death.
iii. The execution or revocation of a will or trust by another person can
constitute such an event.
Ex: Mother devises her estate as follows: To Son, but if he predeceases me, to the
residuary devisees of his Will. Sons will devises the residue of his estate to his
friend, Fred. Sons execution of his will is an act of independent significance,
regardless if he executes it before or after her mother executed hers.
Ex: Testator was in business with brother bob, a barbershop owned as corporation,
50/50 stock ownership. They realized that if they die their spouses would become
owners of their share and they didnt like that. So to avoid being partners with
their in law, they draft an independent document stating that if one of them dies
the other one is to sell their share to the surviving partner.
B. Devise to an Existing Trust
FS 732.513. Devises to trustee
(1)A valid devise may be made to the trustee of a trust that is evidenced by a
written instrument in existence at the time of making the will, or the two
documents must be executed concurrently, if the written instrument is identified
in the will.
(2)The devise shall not be invalid even if any or all of the following reasons:
(a)the trust is amendable or revocable, or both, by any person.
(b)the trust has been amended or revoked in part after execution of the
will or a codicil to it.
(c)the only res of the trust is the possible expectancy of receiving, as a
named beneficiary, a devise under a will or death benefits, and even though
the testator or other person has reserved any or all rights of ownership in
Page 26 of 97

Winter 2014
Maurer

Professor

the death benefit policy, contract, or plan, including the right to change the
beneficiary.
(3)The devise shall dispose of property under the terms of the instrument that
created the trust as previously or subsequently amended.
(4)An entire revocation of the trust by an instrument in writing before the
testators death shall invalidate the devise or bequest.
(5)Unless the will provides otherwise, the property devised shall not be held
under a testamentary trust of the testator but shall become a part of the principal
of the trust to which it is devised.
Ex: Today I establish a trust. But in my will I do all estate planning. A provision
states that on my death I give $100k to the trustee of my trust. Thus, the trust is
okay and sufficiently valid to receive the gift and just becomes complete when it
actually gets it. Someone that apposes it would argue that it didnt have a res, but
this statute was enacted to stop those arguments.
C. Separate Written List of Tangible Personal Property
FS 732.515 allows the testator to make a list of non-business tangible personal
property and the intended recipients.
i. Testator can change the list and make multiple lists.
ii. If multiple, then they are all effective so long as they dont conflict.
iii. If conflict, then the last list governs.
iv. These lists can be written before or after the will is executed and do not
require any witnesses.
v. Does not apply to property that is specifically devised in the will, but to be
safe, the will drafter could indicate on the will that the devise in the will is to
operate only if no separate list is found. (i.e. cash, stocks, etc. not
applicable)
Requirements to the list:
i. Testator must sign each list;
ii. The property and recipients must be described with reasonable
certainty. (Clearly identify who the property is going to and each object)
iii. The testators Will must refer to the possible existence of such a list.

Chapter 7: Dependent Relative Revocation; Lost or Destroyed Wills; and

Later Discovery of a Will
I. Dependent Relative Revocation (DRR)
DRR is a doctrine invoked to prevent intestacy in situations involving a revoked will
(by physical act), requiring a finding that the decedent preferred a revoked will to
intestacy and that the attempted revocation was conditional.
Requirements to DRR: To convince a judge there are 2 things you need to prove: (1)
establish that testators revocation of earlier document was done based on his belief that
the later document would be valid and supersede the later document; (2) be able to prove
to the court that the testator didnt wish to die intestate and would rather have the
earlier will established than die intestate. (Looks to various documents, how many were
there, what they said, what they didnt say**documents need to be consistent**)when
these 2 things are proved a rebuttable presumption arises that testators earlier will is
revived.
Where a testator makes a new will revoking a former valid one, and it later appears that
the new one is invalid, the old will may be re-established on the ground that the
revocation was dependent upon the validity of the new one, testator preferring the old
will to intestacy. In order to revoke a valid will there must be a joint operation of act an
intention to revoke and the intention must be conditional. The legal presumption is
Page 27 of 97

Winter 2014
Professor
Maurer
that the testator destroyed a will with the purpose of revoking it. To rebut this
presumption, it is necessary to consider (1) the circumstances under which and the
purposes and reasons for which it was destroyed; (2) where from all the circumstances it
appears that the revocation was connected with the execution of another will; and (3)
that the testator meant the revocation of the one to depend upon the validity of the other.
Then if the latter will is inoperative, the revocation fails also, and the original will remain
in force. The fact that the later will had a provision revoking any prior wills does not
prevent the application of DRR because it is inferred that the testator intended to revoke
former wills or the purpose of giving effect to the new will. (See, Stewart v. Johnson)
Dependent Relative Revocation creates a rebuttable presumption that the testator would
have preferred his prior will to intestacy; this requires finding not only that the testator
preferred to die testate, but also that the provisions of the invalid will are not materially
different from the prior will(s).
DRR generally does not apply to an invalid portion of a will but rather to an entire will.
o Exception: Notably in charitable devise cases.
Ex: D made a charitable devise in W2 that was invalid bc it violated the Rule
against perpetuities. W1 devised to the same charity but that provision was
valid. W1 also indicated her intent to not die intestate. The court made a
partial revocation of W2 and replaced it with the provision in W1 in order that
D not die intestate. The court made a partial revocation of W2 and replaced it
with the provision in W1 in order to avoid failure of that provision.
Theories for DRR: (1) Courts prefer testacy to intestacy; and (2) testators intent is of
paramount importance.
o Ex 1: D executed W1 and W2. W2 revoked W1 by writing. W2 was found invalid for
lack of attestation. Its revocation of W1 was invalid so W1 is still valid. DRR wont
apply.
o Ex 2: D executed W1 and W2. W2 revoked W1 by writing. W2 was invalid bc D
lacked capacity. W1 is still valid because it was not effectively revoked. DRR wont
apply.
o Ex 3: D executed W1 and W2. D tore up W1. W2 was found to be invalid bc it
lacked attestation. Tanyas lawyers had a carbon copy of both Wills and the only
difference was a charitable beneficiary devise. Its evidenced that D didnt want to
die intestate due to the numerous wills, the court would likely apply DRR. D
destroyed W1 on the condition that W2 was valid. Meaning, W1 was not to be
revoked unless W2 was validbecause it wasnt then W1 may be admitted to
probate.
o Ex 4: D executed W1 and W2. D tore up W1 but W2 was invalid for lack of
attestation. This would mean D would die intestate. Ds lawyer has a carbon copy
of each will showing that they were noticeably different. The court is unlikely to
invoke DRR because it has no evidence that D preferred the provisions of W1 to
intestacy.
o Ex 5: D executed W1 giving his son only a 20% interest in his estate because he is
a gambler. The son later rehabilitated from gambling and D executed W2 leaving
him a 30% interest. W1 revoked by writing W2. The son then started gambling
again and tore up W2 in front of witnesses stating he was reverting back to W1.
The court may apply DRR and allow the will into probate on the theory that W2
was revoked on the condition that W1 was revived.
In Ex. 5, in Florida, the only option for D not to die intestate is to apply the
doctrine, because Florida is an anti-revival jurisdiction. However,
jurisdictions that allow revival would admit W1. Another option in Florida
would have been W1s re-execution or republication.
II. Lost or Destroyed Wills
Page 28 of 97

Winter 2014
Professor
Maurer
A. When a will was in possession of a testator and cannot be found, a rebuttable
presumption arises that the testator destroyed the will with the intent to revoke it. If
rebutted, the terms of the will need to be established for probate administration.
Presumption does not arise if the testator was not the last known person to have the will.
A presumption is instantly rebutted if: (1) persons who would benefit by the wills
destruction had access to the will, knew it was adverse to his interest, and the
opportunity to take/destroy it, or (2) there are factors that explain why the will is
missing (i.e. testators papers were lost in a hurricane).
Evidence to rebut the presumption must be competent and substantial. (See,
Walton v. Walton)
B. The contents of a lost will may be proven by: FS 733.207
(1) the testimony of 2 disinterested witnesses who knew the terms of the will; or
(2) by presentation of a correct copy of the will and the testimony of 1
disinterested witness. (If testimony is unavailable, then estate will pass through
intestacy.)
Correct copy is one requiring identical copy such as carbon, photocopy, or scanned
copy. (Drafts are NOT correct copies)
As long as someone can testify to the document, the court may accept an identical
computer generated copy of what the testator signed may be sufficient proof.
C. Dead Mans Statute **Abolished in Florida**: A law prohibiting the admission of a
decedents statement as evidence in certain circumstances, as when an opposing party or
witness seeks to use the statement to support a claim against the decedents estate.
III. Later Discovery of a Will
A. If a will or codicil is found after administration of the estate has commenced, any
interested person may admit that document to probate upon petition. If an estate has
been fully administered and closed, this statutory provision will not allow reopening
it despite the later discovery. FS 733.208

Chapter 9: Types of Devises; Abatement;

Exoneration; and Apportionment of Taxes

Ademption;

Accessions;

I. 4 Types of Devises
A. Specific: a devise of property which is particularly designated and which is to be
satisfied only by the receipt of the particular property described. It can be of a
specific item of property or a specific type of property.
Ex: devising my real property located at (specific item); or All the jewelry I
would own at the time of my death (specific type).
Ex: An example of a specific devise with an alternate general devise is: I leave to
X 100 shares of Y stock. In the event said stocks have been sold, then I leave X an
amount of cash equal to the value, at the time of my death of such stock.
Badcock v. Badcock, where Husband specifically devised personal tangible
property (including household items) to his son. Upon his death, the wife sought to
render the items exempt. The court held that when property that would otherwise
be exempt is specifically or demonstratively devised by will, it shall not be included
as exempt property. Although household furniture and automobiles are usually
exempt, and thus the surviving spouse would usually have the right to a share on
them, in this case they could not be considered so, because they were specifically
devised to the decedents son. Since the devise was particularly designated, and
could only be satisfied by the particularly described items, it was a specific devise.
The general assets of the estate could not satisfy the bequest to the son, so it was
not a general devise.
Page 29 of 97

Winter 2014
Professor
Maurer
B. Demonstrative: a devise of a fixed amount, stock, or other property, payable first from
a particular fund or from the proceeds of the sale of a particular item, and second,
from general assets to the extent the particular fund or item is insufficient or is not
part of the estate.
Two essential components of a demonstrative legacy are:
(a) That it be an unconditional gift in the nature of a general legacy, and
(b) That it indicate the fund out of which the legacy is to be satisfied.
Ex: I devise $100,000 to Ed, payable first from my account at X bank, and if the
account does not have sufficient funds, from the general assets of my estate; or I
devise 100 shares of X corporation common stock to Sue, payable first from my
account at X brokerage
If the fund is insufficient to cover the full demonstrative devise, for purposes of
abatement, the devise is treated as general to the extent of the insufficiency.
C. General: a devise of a particular amount or quantity to be received, which can be
paid from any estate asset or fund that is not required to pay for a specific or
demonstrative device. Gifts of a quantity of something (usually money). Source isnt
specified, just the quantity or denomination.
Ex: I devise $50,000 to Jim
If the specification is of specific coin or currency collection or a specific dollar bill,
or bills from a specific place where testator left it, then the gift is no longer
general but specific.
The testator does not have to own the property devised or the cash at death, which
would require the PR to acquire the property with the estate assets in the first
case, or to sell estate assets to obtain the cash in the second case.
General devises are paid before residuary devises, to prevent depletion that
would prevent residuary beneficiaries from distribution, a maximum percentage of
general devises in the estate is recommended.
Ex: I devise 100 shares of ABC corporation common stock to my niece Sue,
which my PR shall purchase with estate assets.
D. Residuary: Devise of the assets of the estate that remain after the provision for any
devise which is to be satisfied by reference to a specific property or type of property,
fund, sum, or statutory amount. When the will contains only a residuary clause, the
assets are to be distributed after the estates obligations have been paid (taxes and
creditors). F.S. 731.201(35)
Ex: I devise all the rest, residue, and remainder of my estate in 7 equal shares to
Charities A, B, and C, and to my four children
II. Abatement: the reduction or elimination of devises due to the insufficiency of the estate to pay
all of decedents debts, costs of administration, and all the devises in full.
Insufficiency of the devise can result from
o Changes in the composition of the estate after the execution of the will,
o Post-death events like medical costs, costs of administration, payment to
creditors,
o Decrease on the value of the assets,
o Payment of taxes,
o Omission of a spouse or child who might have rights to a pretermitted share, or
o Invocation of elective share rights from a spouse.
Ex: Upon death my will says I leave all my wealth to Bob, but I have a spouse, if upon
my death my spouse asserts all of his rights then Bobs gift may partially or wholly
abate.
Conditions precedent can be left in a will. Failure of them is a lapse. Conditions
subsequent cannot be left in a will. Any illegal requests will not be upheld.
Page 30 of 97

Winter 2014
Professor
Maurer
If any of those events occur, the share of one or more devisees will be reduced in the
order established by the abatement statute.
A. Abatement of Devises
The testator may include abatement rules in the will. In that case, those rules
govern which devisees share are reduced to pay claims.
i. The testator can provide a general order of abatement or can limit
abatement to particular assets or devisees.
ii. Ex: I devise $60K to Sue and $40K to Sally. If any of these funds are needed
for payment of liabilities, payment is to be made from Sallys devise before
any reduction in the devise to Sue.
Assets that are exempt, such as homestead, when devised to a qualified heir, retain
their exempt status and are not subject to abatement.
i. Ex: a specific devise of furniture to the surviving spouse is exempt and is not
subject to abatement.
In re Estate of Potter, Mom left house (with everything inside) to daughter under
will. Under an inter vivos trust, if the daughter gets the house then the son gets
the equivalent value out of the trust. The daughter got the house and the trust had
to be used to cover estate expenses. Son was pissed. The court held that since the
residence was particularly designated and could only be satisfied by the receipt of
it, it was a specific devise, and since the amount of money held in trust that was
devised to the son could be satisfied out of the general assets of the estate, it was a
general devise.
Although assets in revocable trusts are generally paid outside of probate,
any portion of them may be used to pay for the probate administration
expenses if the estate is insufficient to pay for them. FS 733.707(3) order
to pay expenses and obligations.
The PR is also entitled to payment from the trustee of a revocable trust
when the estate is insufficient. FS 733.607(2)
A trustee of a trust shall pay to the PR any amounts that the PR certifies to
the trustee are required to pay the expenses of the administration and
obligations of the settlors estate. FS 736.05053
Order in which assets abate F.S. 733.805If the will is silent, this statute
applies.
Funds or property designated by the will shall be used to pay debts, family
allowance, exempt property, elective share charges, expenses of
administration, and devises, to the extent the funds or property is
sufficient.
If no provision is made or the designated fund or property is
insufficient, the funds and property of the estate shall be used for these
purposes, and to raise the shares of a pretermitted spouse and children, in
the following order:
o First: Property passing by intestacy.
Property that would otherwise pass to an heir by intestacy
abates before property that passes by devise.
Even if there is a will, property may pass by intestacy when the
wills dispositive clauses do not cover all of the testators
property and the will has no residuary clause, or if having a
residuary clause, the residuary beneficiary predeceases the
testator.
o Second: Property devised to the residuary devises.
Page 31 of 97

Winter 2014
Maurer

Professor

This includes any property that falls into the residue because a
specific, demonstrative, or general devise fails.
o Third: Property generally devises.
If there are only general devises, they are abated by the
proportion each person would get.
o Fourth: Property specifically or demonstratively devised.
Assets that are exempt, such as homestead that is devised to a
qualified heir, remain exempt and do not fall under abatement
rules.
Specific devise of property to a spouse also exempt. Devises to
the decedents surviving spouse (incl. elective share) shall
not abate until other devises of the same class are exhausted.
Demonstrative devises shall be classed as general devises
upon the failure or insufficiency of funds or property out
of which payment should be made, to the extent of the
insufficiency.
Devises shall abate equally and ratably and without preference or
priority as between real and personal property.
When property that has been specifically devised or charged with a devise
is sold or used by the PR, other devisees shall contribute according to
their respective interests to the devisee whose devise has been sold or
used. (Amount of the respective contributions shall be determined by the Ct
and paid/withheld before distribution is made.)

Priority of Claims:
The type of devise and the order of abatement will affect which assets the
PR can sell.
PR is authorized to dispose of estate assets when claimants prefer money
over other assets, subject to the limitations imposed in the will. FS
733.612(5)
Ex: PR cannot liquidate specifically devised property to pay claims or
expenses if there were non-exempt general assets available.
If assets are insufficient to cover all claims within a single class, creditors in
that class receive only partial payment (proportional to claim) and those in
lower classes receive no payment at all. FS 733.707(1)(a)-(h)
o Class 1Costs, expenses of administration, and compensation of PR
and attorneys fees.
o Class 2Reasonable funeral, incl. grave marker. Not to exceed the
aggregate of $6,000.
o Class 3Debts and taxes with preference under federal law and state
for unpaid court costs.
o Class 4Reasonable and necessary medical and hospital expenses of
the last 60 days of the last illness of the decedent, incl. compensation
of persons attending the decedent.
o Class 5Family allowance. (Capped at $18,000)
o Class 6Arrearage from court-ordered child support.
o Class 7Decedents business debts, not to exceed the assets of the
business.
o Class 8All other claims, incl. those against the decedent during his
lifetime.
Page 32 of 97

Winter 2014
Professor
Maurer
III. Ademption by Extinction: Occurs when a specific asset is no longer in the testators
estate after testators death. The assumption is that the testator is aware as to what is in the
will at all times. The law assumed that testator deliberately didnt change the will because
he/she wanted that gift to adeem. (Rebuttable)
Ademption can occur in whole (the entire gift is gone) or in part (only of it is
gone).
The gift does not need to be tangible to adeem. It could be intangible (rights
remaining to a promissory note, rights under a contract, etc.)
Ademption by Satisfaction v. Ademption by extinction
ABSDevise was given inter vivos and testator intended for that gift to
satisfy all or part of a future devise to that person.
ABEThe devise was either disposed of before death or it was never part
of the testators properties. (i.e. Testator leaving the Brooklyn bridge to
someone in his will)
Ex: Testator leaves a car to friend John. Before death, he is in an auto accident and
car is destroyed. At time of the death there is no car but there is auto insurance.
Although the estate doesnt have the car, the estate receives insurance proceeds.
Under common law, the friend would receive the proceeds if specifically stated
under the will, but now the statute states that when a specific gift is made and the
gift is no longer existing (because stolen), and an insurance claim is filed, the
proceeds would go to the friend.
When the devise is not owned by the estate at the time of the death of the testator,
there are 3 possibilities:
1. The devisee is entitled to the property and the PR must acquire it for
him;
2. The devisee is entitled to receive some other property; or
3. The devisee is not entitled to receive anything.
The determination of which of the 3 options would be taken depends on 2 factors:
1. The type of devise, and
2. The reason why the property is not part of the estate
Significance of Type of Devise:
1. General and residuary devises do not involve particular assets, so any
property of the estate may satisfy them. Although demonstrative is initially
specific, they may be satisfied from general assets.
2. ABE ONLY affects specific devises.
3. Testator can avoid by providing an alternative devises.
A. Effect of Testators Intent When Property is Not in Estate.
Specifically devised property is saved when a guardian of the property (due to
testators being adjudicated incompetent) sells it or the proceeds are sent to the
guardian. In that case, the devisee has a right to a general pecuniary devise
equal to the net sale price, condemnation award or insurance proceeds of the
property. FS 732.606 (1)
ExceptionOne Year Rule: If, subsequent to the sale, it has been
adjudicated that the testators incapacity has ceased and the testator
survives the adjudication by 1-year, the gift will not be saved. It is presumed
that if the testator wanted to change it he would have.
Specific devisee has the right to the remaining specifically devised property and:
FS 732.606(2)
Any balance of the purchase price owing from a purchaser to the testator
at death because of sale of the property plus any security interest.
Page 33 of 97

Winter 2014
Maurer

Professor

Any amount of a condemnation award for the taking of the property

unpaid at death.
Any proceeds unpaid at death on fire or casualty insurance on the
property.
Property owned by the testator at death as a result of foreclosure, or
obtained instead of foreclosure, of the security for the specifically devised
obligation.
Ex: Testator leaves blackacre to Sue. The house on blackacre burns down before
testator died. The check for the claim of the home from insurance company was
sent to testator after death, the beneficiary will get the insurance claim check AND
blackacre.
Ex: Testator owns 6 acres of land and leaves it to Sue. The state condemns 4 of the
6 acres. Testator is fighting with the state and drops death before completion.
Upon testators death, Sue receives the check from the state plus the remaining
acres.
A minority of states look to the testators intent (Florida). A majority say that the
testators intent is irrelevant.
Extrinsic evidence can prevent the ademption of a specific bequest if: (See, Hall v.
Jones)
(1) The bequeathed property can be traced to existing assets; and
(2) The evidence reflects that the testator did not intend by his disposal of the
property to alter the testamentary scheme contained in his Will.
Hall v. Jones, where testator left a devise to niece of the equitable interest and/or
income from a house. He later sold it and got a note and deed that was paid in full
($42,054). Testator put exact amount in a bank account. Ct held that in order to
properly determine whether ademption occurred, Florida case law has always
shown that the Ct should entertain all relevant evidence pertaining to the
decedents intent. The fact that testator segregated the prepayment in a form that
was easily traceable and that testator did not make any changes to his will, having
5 months to do so prior to death, may suggest an intent to preserve the specific
devise.

IV. Devises of Securities: Accessions and Ademption

A. Changes in Securities. FS 732.605
If there is a specific devise of certain securities rather than the value of those
securities, the devisee is entitled only to:
(a)the devised securities still owned at death, plus any additional securities
the testator received because of an action initiated by the entity issuing the
securities,
(b)
plus securities received as a result of a merger or similar
action, plus securities received as part of a plan of reinvestment.
This statute invites extrinsic evidence to show that testator intended to devise
stock.
Stock dividends allow the shareholders to receive more shares of stock in a
corporation, but they do not own more of the corporation after the dividend.
i. Cash dividends received on stock that testator specifically gifted under his
will, but did not deposit in an account, is generally given to the beneficiary
under the will.
If the corporation issued a stock dividend, or split its stock, the devisee is entitled
to the additional shares. The rule applies only if the dividend or split is initiated
by the entity rather than by owner action (i.e. exercise of an option to purchase
additional shares is not covered under statute).
Page 34 of 97

Winter 2014
Maurer

Professor

i. If a corporation announces that it is distributing, say, one share of stock for

every ten shares owned, that is a stock dividend. If, instead, the corporation
lets its shareholders choose dividends in cash or stock, dividends reinvested
directly into more shares are not treated as stock dividends because the
corporation did not initiate the action.
If there is a corporate merger or reorganization, under Florida, the specific devisee
is entitled to shares of the second entity but the action must have been initiated
by the entity and not by the owner. (applies to both cash and property
distributions)
Hypo: If testator bequeaths all of his stock to X corp., but testator intentionally
gives it to someone else during life. The gift adeems by extinction.
Hypo: Testator leaves a gift to Fred, all my interest in my IBM stock or all
interests thereof. Fred legally has a right to the proceeds.
Hypo: if testator intended a gift or its equivalent value, the statute does not cover
it. So, if testator gives Sue stocks in IBM equivalent to $100k in value, the devise
would be general and not specific. (Although an argument could be made that it
can be demonstrative.)
Minority: Follow UPC, saying that beneficiary who is supposed to get a specific
gift of stock in the will, gets the stock dividend (becoming part of the gift).
**Followed by Florida**
Majority: Treat the stock dividends the same as cash dividends. It looks at when
the dividends were received; so if received after death then it does not become
part of the devised gift.
V. Exoneration of Debt on Property: At common law (not followed by FL or UPC), debts
encumbering specifically devised real property were exonerated.
a. Encumbered property; liability for paymentSpecific devisee of any encumbered
property shall be entitled to have the encumbrance on property paid at the expense of
the residue estate only if the will shows that was the testators intent. A general
direction in the will to pay debts does NOT establish that intent. F.S. 733.803
b. If beneficiary rejects the gift, creditor can collect from assets of estate or from sale of
the property in which they have a secured interest.
VI. Rules of Construction and IntentionA will is construed to pass all property that the
testator owns at death, including property acquired after the execution of the will. The
testators expressed intentions control the legal effect of his dispositions. F.S. 732.6005:

Chapter 10: Presumed IntentPretermission and Divorce

I. Pretermitted Spouses
Effect of subsequent marriage, birth, adoption, or dissolution of marriage FS
732.507
(1) Neither subsequent marriage, birth, nor adoption shall revoke the prior will of any
person, but the pretermitted child or spouse shall inherit, regardless of the
prior will.
(2) Any provision of a will executed by a married person that affects the spouse of that
person shall become void upon the DOM. Thereafter the will shall be administered
and construed as if the former spouse had died at the time of the DOM.
Exceptions: (1) if the testators will contains provisions indicating that the devise
is to be valid notwithstanding the divorce, and (2) the DOM judgment contains
such language. (Either way testators intent must be expressed in writing clearly
stating that the devise survives the divorce)
Pretermitted Spouse. FS 732.301Allows the surviving spouse to claim the equivalent
of an intestate share of the testators probate property unless 1 of 3 exceptions applies:
Page 35 of 97

Winter 2014
Professor
Maurer
(1) Provision has been made for, or waived by, the spouse by prenuptial or
postnuptial agreement;
i. Can agree not to seek a share in each others property or a share is smaller
than the surviving spouse could demand using the statutory protection. The
agreement may also cover property passing by will, intestate or other
means.
(2) The spouse is provided for in the will; or
i. No min amount required by law. (i.e. can be $.01)
ii. Provided for could mean monetarily or not.
iii. When a will executed before marriage contains a provision for a named
individual who later becomes the testators spouse, the surviving spouse
has the burden of proving that the provision was not made in
contemplation of marriage.
(3) The will discloses an intention not to make provision for the spouse.
i. Testators intent to omit any future spouse may be implied in the terms of
the will.
ii. If will disinherits a future spouse, that spouse cannot claim to be
pretermitted but can claim an elective share.
If the marriage was procured by fraud then the surviving spouse is not entitled
to receive pretermitted spousal share. Unless, both parties subsequently ratify
the marriage or voluntarily cohabited w/ full knowledge of fraud.
A. Rights of a Pretermitted Spouse
A pretermitted spouse received the share of the decedents probate estate that he
or she would have received if the decedent had died intestate (percentage is
applied to the amount remaining after reducing the probate estate by debts, admin
costs and taxes).
i. Hypo: Amy signs a will 1/2/01 leaving all to her 2 sons, ben and jerry. In
2005 she marries spouse and never changes the will. Children dont belong
to the husband. She dies leaving $1m. Who gets? $500mil to husband and
$250 each son.
Rights must be claimed prior to the closing of the probate case.
B. Effect on Other Devisees
Agreement concerning succession. F.S. 732.701
(1)No agreement to make (or not make) a will/devise or revoke a will/devise,
shall be binding or enforceable unless the agreement is in writing and
signed by the agreeing party in the presence of two attesting witnesses.
If executed by a non-Florida resident, it is valid in this state if valid when
executed under the laws of the state where the agreement was executed,
whether or not the agreeing party is a Florida resident at the time of death.
(2)The execution of a joint/mutual Will DOES NOT create a presumption of a
contract to make a will or not revoke a will. (See, Via v. Putnam)
Pretermitted Spouse share will reduce one or more devisees share in the estate.
Unless the will provides for a different order of abatement, residuary devisees will
be adversely affected before devisees of specific, demonstrative, and general
devises.
Via v. Putnam, decedents made a joint will leaving each other as beneficiaries and
residue to kids. Clause prohibiting changes was included. One died and the other
re-married and didnt provide for new spouse. Pretermitted spouse filed petition to
claim share. Kids tried to enforce clause in will as if it were a contract. Ct held that
the legislations intent is to provide for spouses. Mutual wills do not supersede
pretermitted spousal share nor are considered contracts.
Page 36 of 97

Winter 2014
Professor
Maurer
II. Pretermitted Children F.S. 732.302: Allows a surviving child who was omitted from the
testators will to claim an amount equal to an intestate share of the testators probate
property. To be eligible, the omitted child MUST:
a. have been born or adopted after the will was executed, and
b. not have received the childs share as an advancement. Unless:
i. It appears from the will that the omission was intentional (the right of a
parent to disinherit a child) or
ii. If testator had 1 or more kids when the will was executed and devised
substantially all the estate to the other parent of the pretermitted child and
(1) that other parent survived the testator and (2) is entitled to take under
the will.
Pretermitted child may get nothing if decedent is survived by a spouse
b/c child would not be entitled to anything in intestacy (100% would
go to surviving spouse)
Hypo: Fred died and signed a will leaving everything to his dad
Frank. Fred married and had a child and never changed the
will. Wife asserts a pretermitted spouse right. What does she
get? 100% of the estate. The child (which would be a
pretermitted child would not receive because the child is of the
same marriage and mom gets 100%).
Surviving Child includes: natural born, legally adopted, testators illegitimate kids
(if paternity is established).
See, Azcunce v. Estate of Azcunce, where decedent made a will for wife and 3
kids. Had a kid thereafter, made 2 codicils re-establishing terms of will and not
including after born kid. Ct held that testator had 2 chances to add kid into will
and didnt thus intentionally disinheriting the kid.
Notes
i. If extrinsic evidence is admitted to explain testamentary intent the risk of
misinterpreting the testators intent increases dramatically.
ii. Only those who are intended 3rd party beneficiaries have standing in a legal
malpractice action IF they can show that the testators intent as expressed
in the will is frustrated by the negligence of the drafting attorney.
III. Divorce and Annulment
A will executed during a marriage is voided by the divorce. Remarriage to the same
spouse does not revive the voided provisions of the prior will. (See, Fredericks v.
Shriner and Bauer v. Reese) Although in that case they may be entitled to an elective
share or have rights as a pretermitted spouse.
Only a final judgment from a DOM can change a spouses status.
IV. Other Death Benefit Rules
A. Federal statutes trump state laws.
Ex: Employment benefits naming a wife as a beneficiary (under state law the
provisions to the wife would be void after divorce, but under ERISA, federal law,
they are the named beneficiary so they would still receive the benefits of that plan)
Ex: Social Security Act allows ex-spouse to collect the benefits of a prior spouse
who they were married to for at least 10 years and can continue to receive the
benefits even after the ex-spouse dies. (Decedents unmarried children and
dependent parents may also qualify for benefits)
Chapter 11: Lapse, Anti-lapse and Class Gifts
I. Lapse and Anti-lapse Provisions
Lapse provisions apply when:
Page 37 of 97

Winter 2014
Maurer

Professor

Conditioned on survivorship or the occurrence of an event and the testator

didnt name an alternative devisee;
o It is impossible to determine the order of death;
o Devisee kills the testator;
o Rights are waived;
o Devise is disclaimed; or
o Devise is legally impossible (i.e. Statute of liberty)
o Property is not owned at the time of testators death.
A. Related Devisees
Anti-lapse. F.S. 732.603Applies unless testator has intended a contrary intent
in the will.
i. Devises wont lapse if made to testators grandparents, parents, children,
and siblings, and to descendants of any of those relatives (lineal
descendants-i.e. nieces, nephews). **SAME FOR CLASS GIFTS**
ii. Applies when devisees death occurred:
Before will was executed, or
After will was executed but before testators death.
iii. Application of antilapse statute does not mean that gift fails, just that it will
go to devisees descendants per stirpes. But if no descendant relatives then
the gift will ultimately fail.
iv. Ex: The Will leaves $10k to brother Bob, rest and residue to friend Stanley,
Bob doesnt survive. Who gets Bobs gift? Bobs descendants under 732.603
because he is a lineal descendant of testator so the gift doesnt lapse.
Distribution is per stirpes when anti-lapse statute applies. If testator doesnt
like lineal descendants of a beneficiary, he can issue an alternate or specify
lapse requirement.
Statute not applicable when:
i. A provision devises to an alternate taker. (Ex: my IBM shares to my nephew
Al but if he fails to survive me then to Bob.); or
ii. The will provision includes survivorship language even though it fails to
name an alternate taker. (Ex: my IBM shares to my nephew Al if he survives
me.)
Legally adopted children of testator, his grandparents, or any descendant of the
grandparents WILL qualify as a natural child.
B. Unrelated Devisees
A devise made to beneficiary who is unrelated lapses UNLESS the will indicates an
intention to substitute another devisee.
Ex: To my friend Sarah, if she fails to survive me then to her children
evidences the testators expressed intent that the gift not lapse and go to
her friends kids.
Ex: To my friend Sarah, if she fails to survive me then to the City of Davie to
plant trees in memory of Sarah. The devise does not lapse instead goes to
the alternate taker.
Ex: To my friend Sarah. Sarah is not a descendant of testators
grandparents so Sarahs children will not take if they survive her. Because
testator failed to name an alternate taker, the gift would lapse and go to
residue.
Ex: Testator leaves rest and residue to 3 friends, C, D and E. C gets 50%, D
10% and E 40%. If D dies, how is it divided? Pro rata. C gets 40% of Es gift
and D gest 10%.
o

Page 38 of 97

Winter 2014
Maurer

Professor

Ex: Testator leaves rest and residue to C, D and E. C is his sister-in-law. C

dies. Who gets? C and D get Es share pro rata.
II. Individual and Class Devises
A. Describing and Vesting Class Devisees
Individual: A devise is presumed to be individual if the devisees are referred
to only by name and no group label is included. Ex: I devise $10K to A and B.
Group: A devise is deemed to be a Class devise if the devise is made to a group
of individuals by description rather than by name, in which cases, members may
be added or deleted for different reasons. Ex: I devise $10K to my siblings.
Both: When the testator refers to individuals, but also refers to them as a group,
the court must determine whether or not the testator intended a class gift and
whether new members can be added.
i. See, In re Trust under Will of Hennes, where the testator left a devise to
the heirs of the body of his nephew and then listed them individually. The
court held that the intent of the testator must be attained through thee
words used. Here, the class was mentioned before the individual names and
the devise didnt reflect the testators intent to not provide for the newborn
nephew.
As per FS 732.608, when determining the members of a class, the rules to
determine paternity and relationships for intestacy must apply.
Under common law, if a member of a class predeceased the testator, his share
would be divided among all other class members.
Unless the will states contrary, all devises to descendants, issue, and other
multigeneration classes shall be per stirpes. FS 732.611
B. Application of Anti-lapse Rules to Class Gifts
If the devise is to individuals, and a devisee predeceases the testator, the antilapse
rules would apply. The application of the rules would depend on the relationship
between the testator and the devisee (related or non-related, lineal descendant?).
i. Ex: $90k to members of the tennis team. Charlie, David, and Eric get $30k
each (testators siblings). Rest and Residue to Robert. If Charlie dies before
testator. Survived by Charlies daughter. Who and what do they get?
Charlies daughter gets.
If the devise is to a class, and one or more members predeceased the testator:
If the class is of grandparents or their descendants, (to my brothers, to
my nephews, etc.), the antilapse rules apply. In those cases, the class
member who dies before the testator, or even before the execution of the
will is not removed, but their descendants take their share.
If the member of the class is not a relative (to my employees) or the
relative had no descendants then the other class members would share the
deceased members devise.
Where the testator lists the names of individuals to receive under her will first,
followed by their group description (i.e. siblings, nieces), the court will more than
likely consider the devise to be an individual one as opposed to a class gift. (See,
Davis v. Arkenberg)
III. Distribution of Failed Devises
B. Lapse of Devise to an Individual
How a failed devise is treated depends on the type of devise. F.S. 732.604
If specific, demonstrative, or general gift fails property is added to
residue
If residuary gift fails:
Page 39 of 97

Winter 2014
Maurer

Professor

More than one taker the other residuary takers share the failed
devise
o One taker the residue passes by intestacy
See, Lorenzo v. Medina, where the court held that when the predeceased devisee
is a descendant of the testators grandparents, the antilapse statute will save the
lapsed gift by creating a substitute gift in the devisees descendants. However,
when testator names an alternative taker who is not the descendant of the
testators grandparents (relative), and that taker also predeceases the testator, the
gift lapses.
Gifts to non-relatives lapse, PERIOD!
Ex: Irmas will provides I devise $5k to my friend Sarah and residue to my friend
Mary. If Mary dies before Irma, her devise lapses. Since it was a residuary devise,
all but the $5k will pass by intestacy. Sarah still received the $5k.
Ex: Irmas will provides I devise $2500 each to my friends Sarah and Simone and
residue to friend Mary. If Sarah dies before Irma, the devise to Sarah lapses. The
devise to Sarah would then be added to the residuary estate belonging to Mary and
Simone would keep her $2500.
Ex: Irmas will provides I devise $5k to my friend Sarah and residue equally to my
friends Mary, Mona, and Millie. If Sarah dies before Irma her gift lapses and the
$5k is added to the residue estate. If Millie also dies before Sara, the residue
(including the $5k to Sarah) is divided equally between Mary and Millie.
Ex: If, in example 8, Millie was Irmas sister, the result would be different. Unless
Irmas will indicated otherwise, Millies descendants would take Millies share of
the residue.
C. Lapse of a Class Gift
Class gifts are less likely to lapse than are gifts to individuals because the
surviving class members receive the deceased class members share if antilapse
rules do not apply to the devise.
i. Ex: I devise $12,000 to the members of X Club. Members of the club when
the will was executed were A, B, and C. At the time of the death, A had quit,
D joined the club, and B died. C and D will share the devise. Bs devise does
not lapse, but the remaining members share it
ii. See, Lyman v. Folan (In re Estate of Wagner), where testator left 30% of
his estate to his 3 sisters and if one died it would go to the remaining per
stirpes. All of them predeceased testator. The Ct held that the 30% gift
would lapse and go to the testators child and not the descendants of the
sisters because by the time that decedent passed away the sisters didnt
exist thus the gift lapsed.
o

Chapter 12: Protected Homestead; Exempt Property and Family Allowance

I. Homestead Protections
The purpose of homestead is to protect the owner, his family, and his property so that
they are not left homeless.
Fla. Const. art X, 4. Homestead; exemptions
Property owned by a natural person, shall be exempt from forced sale under
process of court, liens (EXCEPT for payment of taxes and assessments, contracts
for its purchase, improvement or repair, or contracts for field, house or other labor
performed on the realtye.g. roofing, windows):
i. Acreage limitationsIf outside a municipality and 160 acres of continuous
land (which cant be reduced without the owners consent subsequent to it
Page 40 of 97

Winter 2014
Maurer

Professor

being included into a municipality) or within a municipality and an acre of

continuous land.
ii. Residency RequirementsThe exemption shall be limited to the residence of
the owner or the owners family; (property need not be a structure, can be a
tent)
Florida Supreme Court has established that even if part of the
property is devoted to commerce, if the owner lives on the lot its
homestead. (See, Davis v. Davis)
Fla. Bankruptcy court, in Radtke, held that in those cases, only the
part of the lot where the person resides in considered homestead, the
business part is not.
iii. Personal property to the value of $1000.
The exemptions shall inure to the surviving spouse or heirs of the owner.
The owner, joined by his spouse if married, can alienate the homestead by
mortgage, sale or gift and, if married, can transfer the title to an estate by the
entirety with the spouse by deed.
Ex: Homeowner owns a 140acre land in non-incorporated municipality. The land
around him turns into municipality with time. The Homeowners land will not be
reduced and exemption still applies. But if owner sells half then the buyer does not
get the exemption.
FS 732.4015. Devise of homestead
The homestead shall NOT be subject to devise if the owner is survived by a spouse
or minor child, EXCEPT that it may be devised to the owners spouse if there is no
minor child.
If the interest is devised to the surviving spouse and disclaimed the disclaimed
interest passes as if the disclaimant had died immediately before the interest was
created.
Notes:
If decedent owns tenancy in common, the share he owns can be exempted.
When you own a condo you are buying an interest in that apt and the dirt
underneath it (along with an interest in the common areas)
Cooperatives cannot have homestead exemption because the shareholders interest
in it is not considered real property, but personal property (shares), especially for
purposes of devise and descent.
Vacation homes are not protected under homestead.
Someone needs to reside in the property (family). If the property was rented then
it doesnt count because it is then rental property.
Ex: If Nancy owns a home in Broward county. He had just been convicted of
murder and got 2 life sentences. Is the house still protected homestead? Yes,
because the purpose is to protect his family. It doesnt matter if the person is in a
nursing home for 1 yr. If they intend to return of have family there then it remains
their homestead.
Ex: If you intend a home to be your homestead, but you are away for 6mths, it
remains your homestead. It lends itself to the testators intent.
A. Claims of Creditors
An unsecured creditor (those not mentioned in (1) of the Fla. Constitution), such as
credit card companies and judgment creditors cannot compel a homeowner to sell
a homestead to pay off those debts. Although many creditors attempt to place
liens, they are invalid and unenforceable against the homestead.
Only three types of debts can be enforced against the homestead:
Page 41 of 97

Winter 2014
Maurer

Professor

i. Debts for payment of taxes, and assessments on the homestead;

ii. Debts for the purchase or improvement of the homestead; and
iii. Debts for labor performed on the real property, such as construction work,
roofing, or window installation.
Waiver: A waiver of the homestead exemption in an unsecured agreement is
unenforceable. Waiver of constitutional rights must be made knowingly,
intelligently and voluntarily. The state has an interest in protecting the public from
being left on the street. While the exemption can be waived in a mortgage, it
cannot be waived in an unsecured agreement. (See, Chames v. DeMayo, case of
lawyer that asked client to waive homestead rights in a retainer agreement.)
i. Waiver of any and all rights will be considered valid in Floridaeven if
during the time you waived there was no homestead, or you were out of US
jurisdiction.
B. Preserving the Creditor Protection for Heirs
When the owner dies the property is no longer considered his homestead, thus the
exemption inures to the surviving spouse or heirs of the owner (protected
homestead)including virtually adopted kids.
The property is not protected from creditors claims IF:
i. the decedent devises the homestead property to a relative who does NOT
qualify as an heir
ii. devises it to a friend (non-relative); or
iii. testator directs that the homestead be sold in a will upon his death.
Case law has established that the homestead provision allows a testator with no
surviving spouse or minor children to devise the homestead property by will, with
its accompanying protection from creditors, so long as the devisee is someone who
COULD be an heir had the decedent died intestate. It does not need to be the next
person to take under intestacy. (See, Snyder v. Davis)
i. To deny exemption for a homestead property simply because of the relatives
consanguinity closeness is contrary to that constitutional intent. Such an
approach takes away from the testator any ability to make a choice as to
which family member will best preserve and maintain the family homestead.
The homestead provision should be construed broadly and liberally.
ii. A testators in laws are included within the class of heirs to whom the
homestead protection inures because the statute includes as heirs kindred
of the last deceased spouse of the decedent.
When the testator specifies in the will that the homestead is to be sold and the
proceeds are to be divided, the homestead loses its protected status.
Ex: Lady created a land trust. Transferred ownership of her residence and vacant
lot adjacent to homestead. She also signed a will saying that the home must be
given to the daughter and vacant lot to the son. She left debts. The law said that
the property is not homestead because it was owned by the trust.
i. Now the new statute says that so long as the trust was revocable up until
the time of testators death the property was still protected homestead.
Ex: Is property still protected homestead if it is transferred into a trust? Merely
transferring a deed into a trust does not eliminate a homestead exemption. The law
says that so long as the grantor still holds the ability to revoke that transfer
revocable trust (by retaining control) the homestead exemption would still apply.
Ex: Does it matter who the beneficiary of the trust is? Yes. If the trust is placed
under a non-relatives name (as trustee), the homestead exemption would fail.
However, if in the will/trust the home is devised to a qualifying heir the exemption
Page 42 of 97

Winter 2014
Maurer

Professor
is saved. It is advised to make a specific gift to a qualifying person of the
homestead when the assets are placed in a revocable trust.

C. Restrictions on Alienation and Devise

The owner of homestead property has some restrictions to alienate or devise
property:
i. A married person cannot transfer any interest in the homestead (i.e. sell or
mortgage) without the spouses joinder.
Exception: Unless the married person wants to add the spouse to the
deed (without their knowledge).
ii. When the homeowner dies and is survived by a minor child, he cannot devise
the homestead, and devise of it would fail.
When the devise fails because testator tried to devise it in a way unauthorized by
law, the homestead property would descend as any intestate property. But if
decedent is survived by a spouse or children, it should descend to the testators
surviving spouse and/or descendants, if any. The surviving spouse receives an
inalienable life estate and the descendants a vested remainder per stirpes. FS
732.401 (Surviving spouse cant get anything less than a fee simple absolute)
i. Otherwise, the surviving spouse can elect to take an undivided interest in
the homestead as a tenant in common, with the remaining undivided
interest vesting in the decedents descendants in being (per stirpes).
(Election must be made with approval of the court within 6 months and is
irrevocable thereafter.)
ii. Although the existence of at least one minor child prevents the devise, the
homestead property would be divided among all the descendants, per
stirpes.
iii. If the surviving spouses life estate is disclaimed, the interests of the
descendants may not be divested.
Real property owned as TBTE or JTWROS is NOT PROTECTED HOMESTEAD.
Upon death, the survivor(s) would solely own the property.
i. If the property continues to qualify as the surviving spouses homestead and
she dies survived by a minor child, her descendants would take the
protected property by intestacy, provided that she has not remarried.
ii. If she remarries, and the new husband does no waive any rights, he would
have his full inheritance rights.
A homeowner who is not survived by a spouse or a minor child may devise his
property to whomever he wants.
When a decedent is survived by no minor children and the surviving spouse has
waived homestead rights (i.e. prenup, postnup), knowingly, intelligently, and
voluntarily, there is no constitutional restriction on devising homestead property.
Protected homestead is not probate property; however, until the property has been
determined to be homestead, the court has jurisdiction over it. If its not, then
circuit court has jurisdiction over the property.
D. Personal Representatives Power over Homestead
A PR has no right to take possession of homestead property because it is not
probate property. FS 733.608
If the PR does not know if the property is homestead, prior to the courts
determination, he CAN possess, protect, and preserve such property which
appears to be homestead if it is not occupied by a person who has an interest in it.

Page 43 of 97

Winter 2014
Professor
Maurer
The PR can place a lien on the property and any income from the property for any
expenses incurred. But lien cannot be used to pay administrative fees and costs of
entire estatejust homestead property.
PR is not obligated to rent it or otherwise make the property productive, but he
can collect rent for the benefit of those that would be entitled to the property upon
determination.
Ex: Joe died. Ana was appointed PR. Joe is the sole owner of 2 homes (black and
white acre). Should PR take possession, change the locks, make all payments,
maintenance home? If the property is empty, you may want to preserve the
property. They have the right (but not the obligation) to care for the home. The PR
that elects to take care of it takes on all responsibilities for them. Any expenses
incurred do to maintenance can be reimbursed by whoever takes title to it (via
placing a PR lien).
II. Exempt Property
In addition to homestead exemption and any assets received under a will/intestacy, the
Florida Constitution exempts up to $1,000 in personal property owned by the
decedent.
Additionally, FS 732.402 protects: **Claim MUST be filed**
o Up to $20,000 worth of household items; (Total $21,000 including constitution)
o Two qualifying motor vehicles (weighing no more than 15,000 pounds, in
decedents name, and regularly used for personal and not business purposes);
o Prepaid tuition contracts; and
o Benefits paid to a teacher or school administrator upon death.
F.S. 732.402 is intended to protect the surviving spouse and children against the
claims of unsecured creditors.
Exempt personal property can be claimed and received by the surviving spouse, or if
none, by the decedents children. However, the decedent can devise exempt
property to anyone and deny the spouse and his children of its claim by
specifically devising the properties.
Property determined as exempt shall be excluded from the value of the estate before
residuary, intestate, pretermitted or elective shares are determined.
However, the exempt property is subject to any secured interests against the. Ex:
furniture and cars (repossession).
III. Family Allowance
The dependents of the decedent are entitled to a claim for cash assistance of max
$18,000 total to provide for immediate and expedient relief of necessities during the
pendency of the estate administration. Such claim must be petitioned to the court by
showing a need. FS 732.403
Dependents include both descendants and ascendants if the decedent was actually
supporting them or had an obligation to support them.
Unless otherwise provided by the will, these payments will not reduce the spouse or
lineal heirs share of the remaining estate.
Disbursement: Can be in lump sum or installments. If a claimant is to receive it in
installments, their death terminates the payments and money will revert to the estate.
Designation of Homestead by Owner
Before levyIn order for a natural person to avail themselves of the benefits of
homestead exemption, they must make a written statement, signed by the
claimant, describing the property (real, mobile, or modular) that is being claimed
Page 44 of 97

Winter 2014
Maurer

Professor

as exempt and declaring that the property as their homestead, and then record it
with the circuit court. FS 222.01
After levyA person whose land has been levied prior to homestead status
determination can provide written declaration to the levier with a description of
what that person regards as his/her homestead and property description. Such
notification must be notarized and provided prior to the day appointed for the sale
of such property. FS 222.02
Leasehold Homestead Exemption: Anyone who owns and lives on property (real,
mobile, modular) that she does not own, but lawfully possesses by lease or otherwise, is
entitled to a homestead exemption. FS 222.05
Definitions:
o Domicile is where persons usual place of dwelling (synonymous to residence)
o Property means both real and personal, or any interest in or that may be the
subject of ownership.
o Protected Homestead means that upon death of owner the property exemptions
(against the claims of creditors) inures to the owners surviving spouse or heirs
Chapter 13: Elective Share
I. History of Elective Share
A. Elective Share in Florida pre October 2001
Prior to 2001, the Florida elective share provisions let a surviving widow elect
against the deceased spouses will and be entitled to receive 30% of the net
amount of decedents property (after all claims, liens, securities, etc. were paid).
They would also retain the rights to homestead exempt property and family
allowance.
In order to avoid the elective share estate before 2001 you could just make the
probate estate zero (make accts joint, revocable trusts, pod accts, and others to
avoid having a probate estate).
Only probate assets were included in the elective share computation. The rule did
not apply to:
i. Property held in a survivorship tenancy
ii. Pay on death account
iii. Life insurance benefits (for which the estate was not a beneficiary)
iv. Property held in an inter vivos trust, and property located outside of Florida.
Dowery and Curtesy have been abolished. FS 732.111
B. UPC Elective Share
The 1990 UPC adopted an augmented estate concept in computing elective share
that includes the value of certain non-probate property resulting in a larger
elective share. But because the surviving spouses property is taken into
consideration, the elective share may be smaller.
Shares are computed based on the length of the marriage (e.g. over 15 years =
50%). In addition to a supplemental elective-share designed to increase the
surviving spouses share to at least $75,000.
C. Current Florida Elective Share Rules
A surviving spouse of a Florida resident has the right to a share of the elective
estate of the decedent. FS 732.201
Right to an election can be exercised by a surviving spouse or his/her attorney in
fact/guardian of the property. FS 732.2125
Page 45 of 97

Winter 2014
Professor
Maurer
This right is in addition to homestead, exempt property, and allowances. FS
732.2105
The new rules generally apply to decedents dying after 10/1/2001.
Elective share is an amount equal to 30% of the elective estate. (Irrespective to the
length of the marriage) FS 732.2065
Includes property outside of the state of Florida.
Elective estates are constitutional under a rational basis review. Florida has a
strong public policy concerning the protection of the surviving spouse in existence
at the time of the decedent's death. (See, Magee v. Magee)
The only way to avoid elective share is by having a prenuptial or postnuptial
agreement.
II. Computing the Elective Share

PR must make 6 computations: (designed to measure spouses rights and means for
satisfying them)
(1) Which assets are included in computing elective estate
(2) Whether any exclusions apply beyond those that apply to the 1st computation
(3) How to treat any asset over lap that is potentially governed by more than 1
inclusion provision
(4) Which assets recd by spouse should count against spouses share
(5) Which other beneficiaries will have their share reduced to pay spouses share
(6) How to value the relevant properties
**PROF TIP: Figure out what assets would be part of the elective estate and then
determine how much of it the spouse would receive. The elective estate requires you to
do a computation. Just because a property is included in the estate for purposes of
computation does not mean they have possession of those assets. The computation of
value is just theoretical, until step 3 where you determine what assets will be used to be
pay the elective estate at the end.**

A. Steps to

computation:
What is the value of the asset to be included in the elective estate? (Total it up.)
Whats 30% of that number? (Thats the value survivor is entitled to receive)
What assets are to be used to pay the surviving spouse?
o Whatever the surviving spouse received prior to (under will or that decedent
planned to give surviving spouse) will be deducted to satisfy the total
amount of elective estate.

B. Assets Included in Elective Estate

Procedural Rules:
i. Spouse must affirmatively claim the estate (either themselves, through their
POA, or court appt. guardian [only with court approval]) within 6mths of
being served with notice of probate proceeding or no later than 2 years from
the death of the decedent. May petition for an extension based on good
cause. FS 732.2135
If a guardian claims an elective share the court must determine if an
elective share interest is in the best interest of the surviving spouse.
Ex: If the surviving spouse is super wealth as is, the court may
determine that the elective share need not be claimed. (So surviving
spouses that are healthy/incompetent are treated differently. The
Page 46 of 97

Winter 2014
Maurer

Professor
latter is subject to the courts discretion. The former can just claim it
and thats it.
If there are big lawsuits pending about the decedents businesses, the
PR can request an extension of time on filing the elective share claim
because the outcome may determine the decision.
Power of attorney, when one person makes another their agent to
act on their behalfbut it becomes invalid if principal becomes
incapacitated. A durable power of attorney continues to operate even
if the principal becomes mentally/physical incapacitated.
ii. Death of surviving spouse terminated elective share rights. Because
the purpose of the statute is to provide enough wealth to take care of the
surviving spouse not to make them wealthy for the benefit of his/her heirs.
iii. Once claim if filed it is revocable and can be withdrawn within 8mths after
the decedents death and before the courts order of contribution. FS
732.2135
Property entering into Elective Estate FS 732.2035
Category 1: Decedents probate property. Does NOT include protected
homestead but DOES include other property located in FL or anywhere else.
Valued at fair market value as of the date of decedents death less liens,
debts, mortgages, security interests and encumbrances. Administration
expenses (lawyers fees, accountants fees, court filing) or funeral expenses
are NOT deducted from the probate estate in computation process.
Category 2: Decedents ownership interest in bank accounts or securities
that are registered as JTWROS, POD, TOD or in trust for. Decedents share
= amount they can w/draw w/out any duty to someone else (in TBTE its
decedents 50% share; JTWROS would be 50%). (Property decedent didnt
own solely)
o Trusts created before 10/1/2001 will be treated as being created after
for purposes of elective share.
o Ex: If D owns an acct with spouse as TBTE his interests is deemed to
be . In all other cases, where he owned with someone other than a
spouse, the Ds interest is determined by how much he could have
withdrawn had he been alive.
o Ex: POD to X (non-spouse). D furnished all the money in the acct. Acct
has 100K. How much is the elective estate? $100k. Thats how much
he put in and could have taken out. Its whatever the decedent had the
right to take out.
o Ex: D put $20k into an acct. Titled the acct to D and his spouse with
rights of survivorship. How much will be included in elective estate?
$10k because if owned with a spouse it is presumed that the other
spouse has a interest.
Category 3: Other types of property. Decedents fractional interest in
property not included under Category 2 or 7 if the property is held in TBTE
or JTWROS to get decedents share, divide value by # of co-tenants
(vacation or rental homes w/survivorship tenancy are likely to be included).
o Properties other than bank or securities.
o Ex: Decedent buys a painting with his 2 sisters as JTWROS. Upon his
death, 1/3rd of interest in value of painting would be included in
elective share computation)

Page 47 of 97

Winter 2014
Maurer

Professor
Ex: D owned Blackacre as JTWROS with X and Y. D dies survived by S
(spouse). X and Y are still living. The pro was worth $90k on the day
he died. How much value should be included in elective share? $30k
o Ex: Assuming that D still had blackacre but instead its a rental
property owned by D and his spouse as TBTE. Worth $90k. Whats the
share that goes under elective estate? $45k (1/2).
Category 4: Property, other than Category 2 property, that decedent
previously transferred if he still had the power to revoke the transfer
unilaterally or in conjunction w/another person. Does NOT include revocable
transfers that require consent of all persons who have a beneficial interest in
the property.
o Ex: Property in revocable trust created by decedent. Category 4 was
primarily geared towards addressing revocable trusts.
Category 5: Does not include Category 3, 4 or 7 but includes 2 types of
property transferred by the decedent before death: (where Dead guy had the
right to cancel the transferi.e. revocable living trust)
o Any interest in property or assets (securities, real estate, etc.) if
decedent had right to or possession of propertys principal or income
(includes actual right as well as legal right to use)
Ex: D created an irrevocable trust with $100k in it. Tell trustee
to invest the money. D is to get all the income from the
investment but nothing else. D dies. By the time he dies there is
$110k in investments. The son is supposed to be the beneficiary
but the wife wants the elective share. What is included in the
elective estate? The entire $110k. Had D asked for 50% of the
income then the share would change to that amount.
Ex: D owned a vacation property $1mil. Transfers the home into
an irrevocable trust with T being trustee. D reserves the right
to use the home to go skiing for life. Thereafter the home is to
go to son. How much of the home value will be computed into
the elective estate? 100% of the value of the property.
Ex: Same as above, even if the decedents right to use was not
contractual but just between T and him, it would still be
included.
Ex: Same as above, T is trustee. D has the right to use the
property for 10 years and thereafter to his son upon his death.
D dies 11 years later. At that point D, had no rights so not
included in elective estate.
Ex: Same as above but D has the right to use the home for
10yrs. But this time D dies in 6 years. What is in the elective
estate? 100% of the value would be included because it is
included in probate estate.
o Any interest in property if the principal could be appointed back to
the decedent or for the decedents benefit (including if right to
distribute is within discretion of anyone other than decedents spouse
DOES NOT INCLUDE SPOUSE). Including irrevocable transfer
during lifetime where trustee has discretion to give money back (only
includes value that could have been returned by trustee)
If surviving spouse is the trustee then it is not going to be
included because the surviving spouse has control over that.
Ex: Decedent buys 100 shares of stock. He transferred title to
his friend Joe but reserved the right to any dividends received
o

Page 48 of 97

Winter 2014
Maurer

Professor

before his death. Joe couldnt sell the stock before decedents
death. Because decedent retained a life estate in the dividends,
the value will be included in the elective estate.
Ex: If D transferred wealth into a discretionary irrevocable
trust, but trustee has the discretion to give it back or spend it
for her benefit, however much the trustee could have given
back is included in the elective estate. 100% of the principal
would be included in the elective estate. If settlor/decedent only
ordered trustee to use 50% of the principal for his benefit and
care, only 50% would be part of the elective share.
Ex: D creates irrevocable trust. T is trustee. T has discretion to
spend income/principal of the trust as needed among a group of
people (including client and children), if no one needs it then
whatever income should be added to the pot. Whatever is left
should be shared by surviving spouse and children equally. 10k
is left. How much will be included in the elective estate? 100%
because trustee had the discretion.
o Exclusions:
Property that could only have been distributed to decedent
w/consent of all persons who had a beneficial interest in
property. (It is unlikely that all of those beneficiaries would
agree to undue trust)
Ex: D created an irrevocable trust. Trust says all income
earned by trust is to be given to her daughter, if she dies,
then to grandchildren. D is only allowed to cancel the
agreement if she can get the daughter and everyone to
agree. What would be in elective share from this trust?
Nothing. It falls within the exception of having everyone
to agree to revoke the trust.
Property whose distribution to decedent required exercise of
general power of appointment held by another person or was
made in default of such exercise.
Property or the income that could have been used or is being
used to satisfy support obligations of a previous spouse and
children.
Ex: H and W are married and get divorced. H is ordered
to put $1mil in a trust to provide for the support of their
3 children. H does it. H then marries M. H dies. If M
were to take a piece it would invalidate the court order.
Thus not valid.
Where decedent had a contingent right to receive principal
(property), other than at the discretion of any person, which
contingency was beyond the control of the decedent and has
not in fact occurred at decedents death.
Category 6: Net cash surrender value of a life insurance policy as of the
decedents death only includes the decedents beneficial interest (if
decedent gives up ownership of the policy and does not retain the power to
surrender it and get cash value, he has no beneficial interest) does NOT
include death benefit, only surrender value. Also, if policy is maintained
pursuant to a court order, (i.e. for benefit for minor children in a divorce or
for alimony) not even surrender value will be counted.
Page 49 of 97

Winter 2014
Maurer

Professor
Ex: George bought whole life insurance policy. Before he died, the
policy had a cash value surrender value of $2k but the policy proceeds
upon death was $100k. Only $2k would be included in the elective
estate.
o Ex: D has life policy for $1m and sue as beneficiary. D dies and there
is a cash surrender value of $100k. Sue gets $1m. What does wifes
elective share get? $100k. The cash value is what you could have sold
the policy back to the insurance company for.
o Ex: D had a term insurance. Those have no cash value. What will be
included in elective share? Nothing.
o Ex: If spouse if the beneficiary, it will come into play under step 3
when we determine how she will be paid.
o Ex: If H insures D, pays the policy and makes himself the beneficiary,
then D dies, wife would get nothing from it because D didnt have
rights over it nor owned it.
Category 7: Property the decedent receives under private or public pension
and retirement plans b/c he survived the decedent does NOT include SS
or Railroad Retirement Act benefits and does NOT include payments if
decedent only agreed to receive benefits for [his] life. Doesnt matter that
there is another beneficiary (e.g. a son)
o Ex: D owned an IRA worth $500k at death naming child as beneficiary.
D is survived by spouse. IRA is invested in stocks. How much will be
included in the elective estate? All $500k.
o Ex: D has a pension plan and named the beneficiary. The value of his
plan benefit was still $500k but only $200 of it was in stocks and
bonds the rest was turned into a life insurance policy that had a $50k
cash surrender value. What will be included in the elective estate?
$250. Cash surrender value and $200 from stocks.
Category 8: Gifts given by the decedent within 1 yr prior to decedents
death:
o (1) transfer that occurs b/c a right, interest or power terminated
before death if the property would have been included in Category 4
or 5 or if termination had not occurred until death; and
o (2) any transfer not covered by any other category if made w/in 1 year
of death. EXCEPT:
(1) transfers for medical or educational expenses (no $ limits);
and
(2) gifts of present interests (up to $14,000 will be excluded
from elective estate)
o

***Value computed at fair market value at the date of transfer, less any liens,
securities, and encumbrances. [Generally gifts made within a year, prior to
the decedents death will be used for computation of the elective estate.]***
o Gifts must be given directly to the school if education, or hospital if
medical in order for them not to be computed into the elective estate.
o Ex: George transferred property into a revocable trust. 4mths before
he died, George released the power to revoke the trust. Because the
power would have resulted in the trust being included under Category
4, the release of the power within 1 year of Georges death is covered
by Category 8.

Page 50 of 97

Winter 2014
Maurer

Professor
Ex: 10mths before he died, George paid his granddaughters tuition of
$15k. None of the amount is included in the elective share because it
was a qualified transfer for educational expense.
o Ex: 2mths before he died, George $15k as a graduation present. $2k
would be included in the elective estate and the $13k is excluded.
o (1) Termination of a decedents right to an asset that decedent owned.
Ex: D created an irrevocable trust and told trustee to invest it
and give income to him for life. Whatever is left upon death
should go to his son. D later says that he doesnt need that
income anymore and instead assigns all the rights to the
income to his son until he dies. D is survived by his widow.
What percentage of the trust would have been included? $100k
was in it originally. Upon his death it was valued at $120. He
gave his rights away within a year when it was valued at $110k.
So the amount that would be used to compute the elective
estate is $110k.
o Ex: The IRS allows tax-free gift one per calendar year. Probate only
allows one. D gives $20k to her granddaughter in December 2013.
Then she gives her $20 in January 2014. For IRS purposes she is fine
but for Probate purposes only $14k of it will be excluded as tax-free
gift, the rest would be subject to elective share computation.
Category 9: Property transferred in satisfaction of the elective sharethe
value of such is included in calculating the elective estate. (e.g. assets
already transferred to trust to plan for future elective share must be
irrevocable)
o The most typical transfer is one made irrevocable to an elective share
trust. Value on the date of death.
o Ex: Fred dies in 2014. Trust provides only person to get income from
trust is wife Wanda. Trust worth $800k. The value to be included in
the computation is 100% of the amount in the account upon
decedents death.
o Ex: If trustee is told to pay a certain amount periodically from trust to
surviving spouse, without discretion to invest the principal, this is an
elective trust and upon decedents death surviving spouse will get all.
If there is an asset that can be considered under several categories, the
larger one should be selected.
o

C. Assets Excluded from Elective Estate

FS 732.2045(1)(a)-(i) provides 9 exclusions:
(1)
Transfers that were irrevocable before October 1, 1999 AND Post2001 irrevocable transfers to a trust where the decedent was not married to
the spouse at the time of transfer to the trust.
a. Ex: Non Marital Property is NOT subject to the elective estate
computation.
b. A waiver is a waiver no matter if made before or after a new law was
enacted. (i.e. prenup signed where the parties waive spousal rights,
then the elective share statute is enacted, parties are unable to claim
they didnt knowingly waive. A waiver is a waiver.)
(2)
Transfers if decedent received adequate consideration. Even where
there is not adequate consideration (e.g. a gift), spouse can consent to sale
w/understanding that this will impact the elective share.
Page 51 of 97

Winter 2014
Maurer

Professor
a. Does NOT need to be a sum of money, can be something of value,
which would eventually be part of the estate. Ex: transfer a car for
another car.
b. Detriment might be enough to form a K but wont make property
excluded from share computation.
c. If part-sale, part-gift (e.g. cheap sale to son), the gift value would be
equal to the difference between the market value and the price
actually paid. The gift part can be included if within a year of
decedents death and it exceeds $14k ($14k is the same amount for
both elective estate and federal gift taxes).
(3)
Transfers to which the surviving spouse consented in writing. (Waiver
must be clearly stated in documentmerely signing the deed is NOT
enough)
a. Ex: H marries S. He wants to give a condo to his daughter. Ss signing
the deed is not informed consent. It has to be a document expressly
stating that she waives the propertys being included in elective share
computations.
b. Ex: Wealthy couple has kids from prior marriages. They want to give
each of their kids $30k. They would need to sign a letter expressly
acknowledging the effects of their waiving their elective rights over
those funds.
(4)
Proceeds of an insurance policy covering decedents life that exceed
cash surrender value (whether payable to decedents estate, trust, or any
other manner).
(5)
Any insurance policy on decedents life that is maintained pursuant to
a court order.
(6)
Decedents 1/2 of certain property treated as community property
under FL law or the law of another state.
a. Florida is not a community state, but this rule has to exist for people
whose marriage is regulated by rules of another state.
(7)
Property held in a qualifying special needs trust at the decedents
death.
(8)
Property that decedent held a general power of appointment over and
was included in decedents federal gross estate.
(9)
Protected homestead (whether held by the decedent or by a trust).

D. Overlap Rules and Valuation of Elective Estates

If an asset falls within more than one cat, stick it into the one with the largest
value. FS 732.2045(2)
FS 732.2055 provides 5 valuation rules:
(1) Life insurance policy value is the cash surrender value immediately before
decedents death.
(2) If rights in the insurance policy were transferred w/in 1 year of death, the
cash surrender value on the date of transfer is included in elective estate
(3) Present value of pension or annuity rights payable to a beneficiary (less than
sum of payments due in future)
(4) Value of any property transferred w/in 1 year of death is calculated as of
date of transfer (less any debt or encumbrances on that property)
(5) Value of any other property to be included in elective estate is at value on
date of death (less claims paid or payable from elective estate or
encumbrances)
Page 52 of 97

Winter 2014
Professor
Maurer
E. Property Interests Used to Satisfy the Elective Share
FS 732.2075(1) governs which transfers to a surviving spouse are applied to
satisfy spouses elective share. A T can provide a diff means for satisfying survivors
share in will itself or in a trust thats referred to in will. In absence of any
provision, spouses share is satisfied from 6 categories listed below:
(a) Property interests included in the elective estate that pass or have
passed to/for the benefit of the surviving spouse.
o If the assets were left to the decedents spouse outright, the asset will
be valued at the date that possession is given to the surviving spouse
o If the interest is a life estate 50% of the value of the property

(b) Amounts included in the elective estate under Category 7 (pension or

retirement plans) in satisfaction of the elective share if they are paid to the
spouse or for spouses benefit.
o Retirement plans (most of themnot RR and the other) if surviving
spouse is a beneficiary of those retirement plans, the amount of those
proceeds will be used to satisfy the elective share that will be paid to
the spouse
(c) Community property interests. If surviving spouse receives any of
decedents share of community property described in FS 732.2045(1)(f),
that amount is treated as satisfying the spouses elective share. Amounts
paid for the benefit of the surviving spouse are also treated as satisfying the
share.
o Decedents will be used to satisfy the elective share. (not including
spouses )
(d) Applies the proceeds to a life insurance proceeds that are paid to
surviving spouse, or for that spouses benefit.
o Must be purchased by someone else, and the proceeds go the
surviving spouse.
o This goes outright to the spouse
(e) Property held for surviving spouses benefit in a qualifying special needs
trustthis section applies that property in satisfaction of the elective share.
o Ex: If you have a spouse who is incapacitated, you want to leave
money in a trust for that person to be cared for (a qualifying special
needs trust). If the decedent didnt have much money, they could
specify that the funds be spent to supplement what the government
doesnt provide the special needs person.
o Ex: What if D created a trust for her spouse with $100m. It says that
the spouse is to be given only the income and upon that spouses
death. If all you give to a surviving spouse in an irrevocable trust is
the right to receive income, then you look at the value of the trust at
time of decedents death and calculate 50% of it in elective share
computation.
(f) Any property interest that would have been covered by the first 5
categories if the surviving spouse had not disclaimed that interest. This
provision prevents surviving spouse from walking away from particular
assets and taking others instead.
F. Abatement of Assets to Satisfy the Elective Share
FS 732.2075(2)If, after the application of subsection (1), the elective share is not
fully satisfied, the unsatisfied balance shall be allocated entirely to one class of
direct recipients of the remaining elective estate and apportioned among those
recipients, and if the elective share amount is not fully satisfied, to the next class of
Page 53 of 97

Winter 2014
Maurer

Professor

direct recipients, in the following order of priority, until the elective share amount
is satisfied:
Class 1 The decedents probate estate and revocable trusts (irrespective
of who the beneficiaries might be) follow abatement order.
o A decedent during their lifetime can create a revocable trust (created
for benefit of another)
o In a revocable trust decedent has the option to revoke
Court is going to include the value of that revocable trust into
value of the estate b/c it is revocable
Class 2 Recipients of property interests (other than protected charitable
interests) included in the elective estate under FS 732.2035(2), (3), or (6).
Those interests were pay on death accts, survivorship tenancies, joint bank
accounts and the decedents interest in the cash surrender value of a life
insurance policy covering the decedents life.
o Also applies to interests included in elective estate under FS
732.2035(5) or (7), but only if decedent had at time of death the
power to designate the recipient of these interests. The interests
covered are those for which decedent could designate recipient of
income/principal and retirement plan benefits. If an interest is a
protected charitable interest, its not included even if decedent had
power to designate recipient
o These recipients will have to pay towards paying the elective share.
o Ex: D has 3 bank accounts with A, B, and C respectively. Each
accounts has $50k. To satisfy the elective share, the surviving spouse
can take from each bank account equally.
Class 3 Recipients of all other property interests (other than protected
charitable interests) included in the elective estate.
o Ex: Includes transfer made w/in 1 yr of decedents death.
o Ex: interests in an irrevocable trusts, depending on how its createdcould either be class 2 or class 3.
FS 732.2075(6)Any amount to be satisfied from the decedents estates shall
abate in accordance with the abatement order set forth in FS 733.805 (Intestacy,
Residuary, General, Demonstrative, Specific).
G. Valuation of Property Used to Satisfy Elective Share
Comes in to play twice:
i. Valuation of assets to compute elective estate; and
ii. Valuation of assets used to satisfy elective share to ensure that the spouse
receives the correct amount.
Value the property on the applicable valuation date.
i. Might be the decedents date of death, date of transfer into the trust or date
on which the surviving spouse receives a distribution.
ii. When property distributed by the PR to the spouse, the relevant date is the
distribution date.
If the surviving spouse has an interest in a trust, the value of the spouses interest
is a % of the value of the principal of the trust on the valuation date as follows:
i. 100% if he trust includes BOTH qualifying invasion power and qualifying
power of appointment.
ii. 80% if the trust instrument includes qualifying invasion power but no
qualifying power of appointment.
iii. 50% in all other cases.
Page 54 of 97

Winter 2014
Professor
Maurer
H. Consequences of Taking Elective Share
Any devises to the spouse are used to satisfy the spouses elective share
Some spousal protections do not count against the spouses elective share rights
A surviving spouse who takes an elective share does not give up rights such as
homestead, exempt property or other allowances
I. Miscellaneous Elective Share Issues
If the court determines that an election is made or pursued in bad faith, by the
surviving spouse or the surviving spouses authorized rep, the court may assess
attorneys fees and costs against the surviving spouse or his/her estate.
Surviving spouse forfeits elective share if marriage was procured by fraud, duress
or undue influence unless other spouse ratifies by living with that person.
Ethical issues that may arise:
i. If you are representing the PR (whos not the surviving spouse), do you have
a right to tell the surviving spouse about the elective share? Fla. bar says
that you have the right and duty to tell them of the existence of the share.
ii. If the PR is also the surviving spouse, there may be a conflict of interest. A
lawyer can represent her but as soon as she wants to elect the elective share
it NEEDS to be another attorney.
Chapter 14: Simultaneous Death; Killer Forfeiture; Disclaimers and Waivers;
Advancement and Ademption by Satisfaction
I.

Simultaneous Death (testate or intestate)

A. Three potential order-of-death possibilities:
(1) Property owner dies first (beneficiary takes property no matter how long thereafter
they live)
(2) Beneficiary dies first (beneficiary gets nothing, because is treated as if he
predeceased the property owner)
(3) Property owner and beneficiary die simultaneously
Property owner is deemed to have survived the beneficiary.
Since the property owner is deemed to be the survivor, the property goes
through only one probate proceeding, not two.
F.S. 732.601 states that, unless contrary intention appears in the governing
instrument (which would prevail), and there is insufficient evidence that the
persons have died other than simultaneous:
1. Order of death Important: When title to property depends on the order of
death, the property of each shall be disposed of as if that person survived.
This allows only one probate proceeding to occur before the final
takers get the property.
Common disaster language in a testamentary instrument will have
the same affect.
Ex: When H and W died simultaneously, the W probate would pretend
H died first, and H probate would pretend W died first. Wife heirs
would get wifes estate, and husbands heirs would get his.
2. Multi beneficiaries: When 2 or more beneficiaries are designated to take by
reason of survivorship, under anothers will, the property shall be divided
into as many equal shares as there are beneficiaries and the property shall
be distributed to those that would have taken if each beneficiary had
survived.
Page 55 of 97

Winter 2014
Maurer

Professor

3. Joint Tenancy: If property is owned as JTWROS or TBTE, the property

converts into a TIC and each partys estate receives . If there are more
than 2 joint tenants, and they all died, the property is distributed per stirpes.
Ex: A, B, and C own the property. A and B die in an accident. C gets it
all.
4. Insurance policy: If the insured of a life or accident policy and beneficiary
have died other than simultaneous, and there are no alternate beneficiaries,
proceeds go to insured and beneficiary is deemed to have predeceased the
insured.
In Florida if I survive you by a minute, we did not die simultaneously, while
in other jurisdictions they require more time (i.e. 120 hours under UPC).
(Testator can indicate a specific time under will)
Standard of Proof of Order of Death: In Florida, by a preponderance of
the evidence, UPC requires clear and convincing evidence. (See In re
of Shine, TC is to determine not whether there is evidence, but rather
whether such evidence is sufficient to conclude that deaths were not
simultaneous.)
Rimmer v. Tesla: H and W died in an A/A. Medical doctor on the scene testified W
died 15min after H. Coroner made an error and put same time of death on death
certs. The court held that death certificates are prima facie evidence of time
of death, but this presumption could be rebutted by competent evidence to
the contrary.

II.

B. Establishing Contrary Intention: Since the simultaneous death statute is a default

rule, the testator can evade in his will by indicating a contrary intent. This can be
accomplished by:
Adding a provision that if there is insufficient evidence to prove that
beneficiary and I did not die simultaneously, then I will be deemed to have
died first or the contrary.
Ex: H ($50,000) and W ($6,340,000), W had prior marriage children A and
B. If they die simultaneously, all of her money would go to her kids. If she
does not want them to have to pay estate taxes (over $5 million), she can
write in her will that if she dies simultaneously with her husband, pretend
that she died before and leave $1 million to him. In that case, H estate gets
$1 million and kids get $5,340,000 divided equally.
Killer Statute
A. FS 732.802 states that:
A surviving person who unlawfully and intentionally kills or participates in
procuring the death of the decedent is not entitled to any benefits under testacy or
intestacy. The decedents estate passes as if the killer had predeceased the
decedent.
If the real/personal property is held as JTWROS or TBTE, the tenancy is severed
and the share of the decedent passes to their estate. (Includes bank accts and
securitieskillers share is not extinguished)
The killer statute doesnt call for the complete termination of the killer's
interest in the property but merely the termination of the right of
survivorshipstatute is not a forfeiture statute awarding all of a killer's
property to the victim's estate. (See, LoCascio v. Sharpe)
A beneficiary of a life policy, or other contractual agreement, who unlawfully and
intentionally kills the principal or insured, is not entitled to any benefits and the
proceeds become payable as though the killer had predeceased the decedent.
Absent an alternative taker, the proceeds become part of the decedents estate.
Page 56 of 97

Winter 2014
Professor
Maurer
If killer is decedents surviving spouse and would get homestead, the decedent is
treated as if they had no surviving spouse. (Statute doesnt extend to children of
killer that would take by natural succession)
A final judgment of conviction of murder in any degree is conclusive for purposes
of this statute. Absent a conviction, the court may determine by the greater
weight of the evidence [Preponderance] whether the killing was unlawful and
intentional.
Where killer took title to decedents property and sold it to a third party, the third
party (good faith purchaser) is protected if they took the property for value and
without notice. The killer becomes liable to the estate for value of property (same
is true if insurance co. pays out on policy without notice).
B. Standard of Proof: Burden is on person claiming that statute applies to prove that
killing was unlawful and intentional.
Congleton v. Sansom: H strangled and killed W. The case was dismissed for
reason of insanity. Court held that the acquittal for murder in a criminal case is not
determinative for purposes of the killer statute. Even if an act is excusable it does
not mean it was not intentional. For it to be unlawful there must not be any
defense or justification for act. Acquittal by reason of insanity is appropriate if
reasonable doubt exists either as to his mental ability to distinguish right
from wrong at the time or if by reason of mental infirmity, disease, or
defect unable to understand the nature and quality of his act or its
consequences.
III.

Disclaimers: A person may disclaim, in whole or in part any interest in or power over property
under a will/intestacy, including a power of appointment. FS 739.101-701
a. Effective when the instrument that created the interest (will, trust, etc.) is
irrevocable. Under intestacy its effective when decedent dies.
b. Must be in writing, declare that it is a disclaimer, describe the interest or
power to be disclaimed, be signed by the disclaimant, and acknowledged
with the same formalities of a real estate deed. Document must be
irrevocable.
c. A fiduciary can disclaim on behalf of a ward, with court approval:
i. A trustee can disclaim on behalf of the trust without court approval if the
trust document says so, if it is silent trustee needs court approval.
ii. In the absence of a court appointed guardian, a parent can disclaim on
behalf of minor without court approval as long as parent wont get the gift
as a result.
d. Disclaimer should be mailed to PR or person from whom assets are coming
(brokerage firm, insurance company, etc.)
e. Disclaimant has to be competent to disclaim (may need to do guardianship
proceeding first.)
A. Who takes disclaimed property?
If the instrument creating the interest says what will happen in case of disclaimer,
it governs.
If there is an alternate taker specified in the instrument, he would get it.
If there are no alternate taker, 3 rules apply:
The property passes as if disclaimant had died immediately before interest
was created.
If a disclaimant is not an individual, the property passes as if disclaimant did
not exist.
If a preceding interest is disclaimed (life estate), the future interest takes
effect immediately before the time of distribution. If the disclaimant holds a
Page 57 of 97

Winter 2014
Maurer

Professor

future interest, his disclaimer does not accelerate the right to possession of
the future interest.
o Lapse and antilapse rules apply to disclaimers
B. Disclaimants in Financial Difficulty
A disclaimant, after disclaim, has no interest in property.
Beneficiary who is in financial difficulty may want to disclaim property to keep
creditors from taking it.
Because the property passes as if the disclaimant predeceased the testator, the
property could go to the disclaimants descendants.
Once property is accepted it cannot be disclaimed.
Insolvency: Where the sum of a persons debts is greater than all of the persons
assets at fair valuation and that the person is generally not paying his or her debts
as they become due. In FL, a person cannot disclaim if that would make him
insolvent. (See, Dryer v. US)
IV.

Waivers and Succession Agreements

A. Waivers: A spouse can make an advance waiver of right to elective share, intestate
share, pretermitted share, homestead, exempt property, right to be a PR and family
allowance. FS 732.702
Waiver of all rights means waiver of each right listed in Statute (elective share,
pretermitted share, intestate share, homestead, exempt property, family allowance
and preference in appointment as PR) unless waiver says otherwise.
Taylor v. Taylor: H and W signed a prenuptial agreement where after
marriage their properties would be forever free from any and all claims by
the other spouse and would belong to their personal estates in the event of
any death. The agreement was challenged because it didnt specifically state
all rights. The court held that Florida does not require specific language to
indicate intent to relinquish all rights, a general relinquishment of all
rights or an equivalent language would be sufficient to have waived spousal
rights upon death.
Waiver requires a written instrument, signed by the waiving party in presence of 2
witnesses, who must also sign.
Waiver does not require receipt of consideration.
Waiver can be made wholly or partly, before or after marriage, by a contract,
agreement, or waiver.
If waiver takes place before marriage (i.e. prenup) no fair disclosure of other
spouses estate is required. If after marriage, full and fair disclose required.
(Partial disclose in a prenup does not render the agreement invalid since it doesnt
require it anyways)
Waiver must be voluntary and intentional.
B. Succession Agreements: These agreements are usually made instead of establishing a
trust, with the purpose of protecting property for descendants, in case of remarriage.
Can be created to make/revoke a will or devise.
They must be in writing and signed in the presence of witnesses by the agreeing
party. All contract formalities are important. Even the execution of joint or mutual
wills will not be presumed as a succession agreement.
Vests at death, so often have to wait til death to claim that testator breached the
agreement.

V.

Post-Death Private Agreements: Private contracts made by and between beneficiaries to

alter the interests, shares, or amounts to which they are entitled. Must be in a written contract
Page 58 of 97

Winter 2014
Professor
Maurer
executed by them. Agreements are subject to rights of creditors, tax authorities and other
beneficiaries who are not part of the contract. FS 733.815
VI.

Effect of Inter Vivos Transfers on Recipients Share of Estate: An inter-vivos gift made by
a property owner to his future heir or devisee may be considered either a loan or a gift
chargeable against any future devise or inheritance. The characterization may affect what the
transferee ultimately receives from the estate.
A. Loans to beneficiary
If an intestate was owed money by an heir, any unpaid balance may not be charged
against the intestate share of any person except that heir. FS 732.109
If the debtor predeceases the decedent, the debt will not be charged against the
intestate share of the debtors heirs.
Testate creditor can cancel a debt in his will (intestate creditor cannot).
B. Advancements (Intestacy Concept): An early inheritance that reduces the heirs
interest in intestate estate. FS 733.806
2 ways of establishing an advancement:
(1) the testator declares the property to an inheritance in writing at the
time of delivery to the prospective heir; or
(2) the heir acknowledges in writing that the property was advancement.
Valuation of Cash: If advancement is cash, future share is reduced by that amount.
If interest was less than advancement, heir does not have to pay the difference.
(Ex. D gives E $10k advancement. Es inheritance share will be reduced by $10k. If
instead they were advanced $10k and the share was $9k, E would not need to pay
the $1k difference.)
Valuation of Property: The advancement is valued at the earlier of when the
recipient came into possession of the property or the date of decedents death. (Ex.
D leaves daughter condo worth $150. By the time he died it was worth $200k. Her
inheritance share will be reduced by $150k.)
Advancements do not effect the amount the heirs descendants will be entitled to
receive, unless the writing provides otherwise. (Ex. If E predeceased D, Es
children would receive the full inheritance amount without deducting Es debt.)
Advancement has to come directly from decedent. If future heir gives part of the
advancement to another future heir, there is no 2nd advancement.
C. Ademption by Satisfaction F.S. 732.609A transfer made to a devisee before the
testators death is not treated as made in satisfaction of a devise to that devisee unless
there is a writing to that effect
Treats pre-death gifts as satisfying a devise ONLY IF 1 of 3 requirements is met:
Testators will provides that the lifetime gift reduces the devise;
A separate document is used to provide that the gift reduces/satisfies the
devise; or
Devisee can acknowledge in writing that gift satisfies devise.
Inter vivo gifts are valued at the earlier date of possession by devisee or date of
testators death.
UPC allows a gift to a 3rd party to be treated as in satisfaction of a devise. (FL
limits it to a particular devise)

TRUSTS
Chapter 17: Introduction to Trusts
Page 59 of 97

I.

Winter 2014
Professor
Maurer
Terminology
A. Trust: a legal device to dispose of or transfer assets now or in the future.
B. Parties in Private Express Trust
1. Settlor: transfers assets to or otherwise funds trust (a/k/a grantor, creator, donor,
trustor or transferor).
2. Trustee: Person or entity charged with managing trust assets for beneficiaries
benefit (Holds legal title over of assets for the benefit of someone else).
3. Beneficiaries: Those who have equitable interests and for whom the trust is
administered
The same person cannot be the sole trustee and sole beneficiary, because legal title
and equitable title should not merge on the same person, that is a sine qua non
requisite of the trust.
Other than that, a person can wear two hats (settlor and trustee), or two or more
people can hold the same function (co-trustees, several beneficiaries).
C. Methods for Creating Express Trust
An express trust can be created in 3 ways:
i. Settlor transfers funds to a third party who acts as trustee (made by devise
in case of testamentary trust created in will).
ii. Settlor declares himself trustee of assets for benefit of beneficiaries. (Selfdeclaration/declaration)
iii. Holder of a power of appointment exercises the power and creates a trust.
If same person is settlor and trustee, the created document is a declaration. If
someone else is named the trustee, the document is a trust agreement.
D. Category of Trusts: Inter Vivos or Testamentary Trusts
Inter Vivos: Trust that is effective during the settlors lifetime. (Revocable or
Irrevocable)
Testamentary: Trust that takes effect after the settlor diescreated as part of a
will. (Since settlor is dead it is always irrevocable)
E. Revocable or Irrevocable Trusts
If settlor can change his mind and change assets/beneficiaries in the trust then the
trust is revocable, otherwise, it is irrevocable.
If irrevocable, the creditors of the settlor can only get the beneficial
interests in the trust that are retained by settlor.
If revocable, (settlor doesnt need anyones consent to change/cancel), the
creditors of the settlor can get the entire trust even if the settlor is not a
beneficiary, and even if the trust was created years before the creditors
claim arouse.
o Revocable trust subjects settlor to income tax on income from trust
even if the settlor is not one of the trust beneficiaries.
o Lastly, there are no gift tax consequences in an inter vivos revocable
trust because the gift is not complete as the settlor can take it back at
any time. Basically, revocable trust assets are treated as belonging to
settlor.
If trust is silent about being revocable or irrevocable, it is considered by law to be
revocable.
However, if the trust was created before 2007, it is presumed
irrevocable, as that was the law at that time.
Assets in an inter-vivos trust avoid probate.

Chapter 18: Substantive Trust Elements

Page 60 of 97

I.

Winter 2014
Professor
Maurer
Trust Elements for Private Express Trust (PET)
Elements for PET to be established
1. Res. Any type of recognized property interest.
2. Settlor with capacity and intent to create a trust.
3. Trustee with fiduciary duties (owed to beneficiaries)
4. Beneficiary (except when the trust is a charitable trust, where you dont need the
identified beneficiaries)
a. Ex: trust to the benefit of people who wants to study law in Florida.
5. Valid Trust Purpose. A trust must have a lawful purpose (although does not need to
be productive)
In FL, trust does not need to be in writing, unless it owns real property, which must
be transferred to trust in writing because of the statute of frauds. (When it needs to
be in writing, it needs to comply with the formalities of a will.)
A. RES (corpus or principal): Something of value that the settlor owns and places into
trust.
It can include FUTURE expectancies if they have value. Trust can have nothing at
time of creation but a will directs that a trust be created on death (pour-over will)
or life insurance proceeds with trust as beneficiary. FS 733.808
Ex: contingent interests, executory interests, or even an equitable interest.
However, a failed gift or a promise to make a gift cannot be a res.
Ex: Naming a trust as a beneficiary in a life insurance policy. The trust has
an EXPECTANCY; a right to receive upon death.
Does not have to be of a huge value.
Assets need to be placed in the name of the trust for trust to exist. Putting assets
in the trust is called funding of the trust
Ex: Putting a home under the title of the trust in the recording office,
deposit in bank account, or putting a dollar with the trust documents (check
is not sufficient).
Failure to comply with res requirement may destroy the trust
Lottery ticket transferred to trust can be res as long as it has not expired (same for
land/stock option K). If the lottery is won the trust is funded from the date the
ticket was given to the trustee, if lost the trust does not exist for lack of res
(funding).
Gift must be contingent (lottery), not merely a promise to make a gift.
(Expectancy is the key)
Ex: A buys a lottery ticket today, and says that if in the future she wins she
will transfer it into a trust. Is there s trust? No. Trust doesnt own anything.
(Unenforceable promise)
Ex: What if I buy the lottery ticket, and I give the ticket to Mr. T the trustee,
then the lottery ticket wins? The trust existed when the lottery ticket was
delivered. (Something was delivered that at the moment was worth $1. So if
it wins that trust had a res that is valid.) Had she not won then the ticket
would have been worthless and the trust would be invalid for lack of res.
Exceptions to common law rule that a res is needed to create a trust
FS 732.513 Ex: I sign a trust today, and then make a will devising
everything, at death, the trust is only getting $100, at the point when the
trust receives the $100, it existed. A gift to the trustee is the same as a gift
to the trust if identified as trustee.
Page 61 of 97

Winter 2014
Professor
Maurer
Adams v. Adams, Mr. and Mrs. Abbot were married and owned a lot in
Washington. They executed a deed to be placed in trust. Mr. Abbot filed with clerk
but never delivered to Mrs.for a trust to have a res, the delivery need not be
physical; can be constructive.
B. SETTLOR INTENT AND CAPACITY: A manifestation of the intent to create a trust with
all its required elements. A properly drafted trust includes dispositive provisions and
administrative provisions.
3 Elements to Intent:
1. Express intent to create trust. Transferor has to specifically intend to
create a trust (bailment, agency, failed gift or a moral obligation or wish that
someone takes care of someone else is not sufficient).
Intent can be shown through words or actions.
Ex: Rosen v. Rosen Father of 3 minor kids, buys a life insurance
policy, and names his 3 minor children. Before he dies, he renames
the beneficiary as his father. Intent to create a trust can be manifested
by changing the life insurance beneficiary from minor children of the
owner who are in need of support, to the father of the owner, who has
no financial needs.
Precatory Language: An expression of wishes, hopes, or desires
without imposing a legal obligation.
To establish a valid precatory trust, there must be:
1. Sufficient words to raise it;
2. A definite subject; and
3. A certain and ascertained object.
Ex: I leave all of my jewelry to my daughter and desire that she
share it with all the females of the family. Does not impose any
obligations on the daughter.
2. Capacity of Settlor
Capacity needed to create a trust is the same needed to create a will.
Settlor must have capacity at the time of formation of the trust.
o Know the natural objects of your bounty
o Know effect of your will
o Know the extent of your bounty
Settlor must be a competent adult
As to a revocable trust, the settlor must have the same capacity
needed to write a will.
As to an irrevocable trust, the statutes are silent. Need same capacity
as would be required to make non-trust inter vivos transfer in similar
circumstances. (Know what you are giving and who you are giving it
to.)
3. Present Intent
Intent to create a trust must be a present intent (not when you are
older, I will set up a trust for you)
Trust Declaration same person is trustee and settlor.
Trust Agreement trustee and settlor are not the same person of
there is more than one trustee.
C. TRUSTEE W/ DUTIES
There must be (1) a trustee (2) w/ duties.
Trustee requirements
Page 62 of 97

Winter 2014
Maurer

Professor

You can have one or more trustees. (Individuals or corporations)

Trustee can be the settlor or a third party. (over the age of 18)
Settlor can indicate how the trustees are to be selected if there are no
alternate nominees. If there is no mechanism in the document then any
beneficiary is entitled to petition the court for appointment of successive
trustee. (the court wont allow the trust to fail for lack of a trustee)
As long as there is more than one beneficiary, the trustee can be one
of them, even if the remaining beneficiaries are only entitled to a
remainder, while the appointed beneficiary is the only one who has a
life interest on it.
You arent forced to be a Trustee in Florida, but once you are you MUST
comply with obligations or resign.
Exception to the appointment of trustee rule: Due to the nature of the
discretion he gave the trustee it was apparent that only this person was
uniquely satisfied and if this person could not do it the trust would fail. (Ex:
Mr. T was to distribute the assets to Ds favorite friends in high school. If Mr.
T fails then the trust would fail.)
Duties
For a trust to be active or special, the settlor must impose upon the trustee
sufficient duties to carry its purpose. Otherwise, the trust would be
considered passive, bare, dry, naked, a general trust, or a use.
Trustee must owe fiduciary duty to current and future beneficiaries. Your
duty of care is higher than the duty to your own property.
Trustee must generally endeavor to make trust assets productive, to insure
it, make sure they generate income, to distribute assets and income to
beneficiaries.
Trustee has an obligation to satisfy all beneficiaries (which is very difficult
sometimes).
Trustees generally have to avoid self-dealing (entering into transactions with
himself, like buying a car from the trust for personal use), although all
beneficiaries giving written consent, or if there is a good reason for the selfdealing, you can get courts permission.
Trustee must not comingle trust assets with their personal assets or that of
any other separate trust.
Beneficiaries can sue trustee but can generally not object to trustees
actions (personal creditors of trustee cannot reach trust assets)
As long as the trustee does a good job in investing the assets of the
trust, he would not be liable for a market decrease in value.
Even though some trustees have discretion to do what they want with the
assets of the trust, he still has to act in good faith, and be reasonable.
Contella v Contella: Contella is the life-income beneficiary under the trust
established by himself and his father. His children are the remainder
beneficiaries to receive under the trust. An independent person was named
trustee. Father wanted to be involved and was given permission by the
trustee to invest some of the assets. Argument was brought that the trust
terminated because father is beneficiary and trustee. The court held that
father wasnt the trustee, although he did most work, and trustee still owed
duties to the beneficiaries.
D. BENEFICIARY: A person with current or future benefit in assets (or power of
appointment/right to appoint beneficiaries) FS 736.0103
Page 63 of 97

Winter 2014
Professor
Maurer
Ascertainable Beneficiaries
A trust must have an ascertainable, definite beneficiary that can be
ascertained now or in the future. You can say your beneficiaries would be
your grandchildren at death even if you dont have any yet, because they can
be ascertained.
o Exception:
Trust for the care of an animal (only lasts for 21 years);
However settlor is limited in amount. If the court finds
that the amount left for animal is too much, the excess
money is returned to the settlor (if living), or the estate
(if deceased).
o Exception: A trust for the care of a cemetery plot
could last over 21yrs.
Charitable trust; and
Non-charitable purpose
Beneficiaries dont have to be named in trust document just have to be
ascertainable.
Qualified beneficiary: Anyone eligible to receive trust benefits NOW, plus
any person eligible to receive now if all those people entitled to get now
drop death immediately.
o Ex: D creates a trust. Income to W for life. Then income to C1, C2
and C3. When they are all dead to grandkids and to Nova. Who
are qualified beneficiaries? W and C 1-3. If W dies then C 1-3, Nova
and grandkids are qualified beneficiaries.
Trust has to have at least 1 current beneficiary but can refer to future/nonexistent beneficiaries (e.g., children or grandchildren who havent been born
yet)
Beneficiaries get an equitable interest, which would give them the right to
be redressed in case the trustee fails to do his job, or is mismanaging the
property.
It is common to establish successive groups of beneficiaries who would get
interests for life. It usually involves the creation of future interests.
o Beneficiary who gets income from trust gets equitable life estate
next beneficiaries have equitable remainder
o Descendants of beneficiaries get contingent remainder (have to
survive other beneficiaries)
o Settlor has a reversion
Settlor has significant flexibility when designing a trust with respect to when
income or principal can or must be distributed to beneficiaries
o Trustee may be obligated or may be given discretionary powers as to
distributions of income or principal, which:
May be limited by a standard, such as for health or education,
or
Be within the sole discretion of the trustee
Alternatively, a trustee may be required to accumulate income and thus may
not have the power to make current distributions of income or may not be
authorized to distribute principal for a period of time
Merger Doctrine: A merger occurs when the same person is the owner of both
the legal and equitable interest causing the trust to end.
E. VALID TRUST PURPOSE
Page 64 of 97

Winter 2014
Professor
Maurer
A trust may be created only for lawful purpose, to the extent that it is not contrary
to public policy and to the extent that its purpose is possible to achieve (must also
comply w/RAP).
Questions are whether intent/motive or effect/use of trust is illegal (intent is the
majority view)
Trust and terms must be for benefit of the beneficiaries
Examples of trusts that will fail here:
Trusts created to pay the fines of persons engaging in crimes
Use of a trust to try and defraud a creditor.
Ex: D racks up CC bills. Creates a trust and names T as trustee.
Transfers everything he has to it. The agreement says that T is to
invest the assets and give the income to for his care. Upon his death
to his children. This wont fly because the purpose was for fraudulent
use.
Trusts created to pay fines of someone operating a nuisance
Dead-hand scenarios while people are free to give or w/hold assets, cant
attach whatever conditions one wants to distribution provisions that the
law views as socially undesirable influence on exercise or non-exercise of
fundamental rights that significantly affect the rights of beneficiaries and
others will not be upheld (e.g., scholarships limited by race, religion, sex,
natl origin, etc.)
Ex: Trust is created by settlor to provide money for students going to
college, but can only be given to students practicing Baptist. Is the
trust valid? The validity of any discriminatory can be challenged when
it discriminated against others over a constitutionally protected right
(i.e. religion).
Intent of the settlormajority viewA trust is illegal if it would encourage
another person to commit a crimeIf the effect the trust is likely to have is to
promote illegal activity, then it is against public policy.
Minority viewAs long as the Trustee is not doing anything illegal or
impermissible, the trust is finethe test focuses on how the trust assets
are actually used and not the intent of the settlor.

Chapter 19: Trust Formalities and Funding Trust

I.

Trust Formalities
In order to survive a challenge to its validity, a trust must have:
(1) Met the substantive elements for an express trust (res, trustee/duties, identifiable
beneficiary, and purpose) AND
(2) Been executed w/ the requisite trust formalities. (if the type of trust calls for
formalities)
A. Testamentary Trust Formalities (Created by willeffective upon death)
In all states, a trust created as part of a will (testamentary trust) must comply with
the states requirements for proper execution of a will.
4 requirements for a validly executed will: FS 732.502
1. Settlor/testator must sign the will at the end
2. Settlor/testator must sign (or acknowledge his signature) in the presence of
at least 2 attesting witnesses
3. At least two witnesses must attest to the settler/testators signature
Page 65 of 97

Winter 2014
Maurer
B. Inter

Professor
4.The attesting witnesses must sign in the presence of the settler and each
other
Vivos Trust Formalities (Created during settlors lifetime)
Formalities depend on whether the trust res is personal property or real property
Inter vivos trusts consisting of personal property need not comply with any
formalitiesthose consisting of real property must comply with statute of frauds
(in writing signed by settlor)
How do you get real property into the trust? Transfer by deed. For a valid
deed you must have 2 witnesses signatures.
Statute of Frauds for Trusts of Land FS 689.05In order to create an
enforceable express inter vivos trust of property, the Statute of Frauds requires:
Manifest the trust intention and proved by a writing;
Signed by the party authorized by law to declare or create such trust (e.g.
via will);
Where the owner of property DECLARES that he holds it upon a trust
Reasonably identify the trust property, the beneficiaries, and the purposes of
the trust.
For an Inter vivos transfer, writing is sufficient if signed:
By transferor before or at the time of the transfer; OR
By the transferee:
Before or at the time of the transfer, or
After the transfer was made to the transferee but before the
transferee has transferred the property to a third person
Writing can take the form of:
letter signed by the trustee, regardless of whether or to whom it is mailed
signed writing in which the trustee states that he or she is not bound by the
trust and does not intend to perform it
properly signed memorandum is sufficient, only if it indicates that a trust is
intended and provides a reasonable basis for identifying the trust property
and the beneficiaries and purposes of the trust

How trust estate is conveyed. FS 689.06All grants, conveyances, or

assignments of a trust shall be:
1. Conveyed by deed;
2. Signed;
3. In the presence of 2 subscribing witnesses;
4. By the party granting, conveying, or assigning or their attorney or agent
(lawfully authorized);
5. Delivered.
**However, either a constructive trust or resulting trust could be imposed in
cases whether the elements for either are met**
FS 689.07 If you simply convey to John Doe as trustee you are giving it to him
in fee simple (legal title). (See Raborn v. Menotte)
C. Formalities for Testamentary Aspects of Revocable TrustsOnly applies to settlors
who were domiciled in Florida when the trust was created
Testamentary aspects of a revocable trusts are invalid UNLESS the trust
instrument is executed by the settlor with the formalities required for the
execution of a will in Florida.
o Applies if res is real OR personal property (not distinguished)
o Applies ONLY when the revocable trust has testamentary aspects
Page 66 of 97

Winter 2014
Maurer

Professor

o Applies ONLY to those testamentary aspects

Testamentary Aspects. FS 736.0403(2)Those provisions of the trust
instrument which dispose of the trust property on or after the death of the settlor
other than to the settlors estate.
Zuckerman v. Alter: Inter vivos trust statue creates two alternative tests
for validity of inter vivos trust, where settlor is sole trustee rather than a
single test that requires compliance with formalities for execution of will. If
by the terms of the trust an interest passes to the beneficiary during the life
of the settlor although that interest does not take effect in enjoyment or
possession before the death of the settlor, the trust is not testamentary.
All trusts need substantive elements Res, Settlors Intent, Trustee w/duties,
Beneficiar(ies), and Purpose.
Inter vivosRevocable
Inter vivos
Testamentary
Irrevocable
Trust
None. (can be oral) see
Will formalities
Person testamentary aspects must
be executed like will.
736.0407
732.502
al
Proper 736.0403(2)(b)
ty
SOF for trusts 689.05
Will formalities
Real
SOF for trusts 689.05 AND
732.502
Proper testamentary aspects must
be executed like will
ty
736.0403(2)(b)
II.

Funding Trusts
A. Funding Revocable Trusts
Probate is avoided only for the assets that were actually transferred into the trust
prior to death.
Death Benefits FS 733.801A valid inter vivos trust can exist in Florida even if
its res consist solely of pour over assets from the will, or expectancy of death
benefits or insurance proceeds. These type benefits meet the res requirement,
because the Florida legislature has sanctioned them.
Transferring assets: Transferring assets into a trust (also referred to as funding a
trust) requires:
Assessing the nature of the assets; and
Complying with the requisite formalities for transferring the assets to the
trustee
Generally, the settlor may fund a trust with any type of property.
In practice, however, some assets are more appropriate than others. For
example, a Florida domiciliary can avoid additional (ancillary) probate
proceedings by transferring real property located outside Florida to an inter
vivos trust.
Homestead Risk: There may be a risk in transferring the settlors Florida
homestead to a trust. Some courts allow the transfer and keep protection.
To qualify for Florida's homestead exemption, an individual must have an
ownership interest in a residence that gives the individual the right to use
and occupy it as his or her place of abode. As a general rule, the individual
claiming the exemption need not hold fee simple title to the property. Rather,
in order to claim property in which the individual resides as exempt it is
sufficient that (1) the individual have a legal or equitable interest which
gives the individual the legal right to use and possess the property as a
Page 67 of 97

Winter 2014
Maurer

Professor

residence; (2) the individual have the intention to make the property his or
her homestead; and (3) the individual actually maintain the property as his
or her principal residence.
Transferring real property to the trustee: Transferring real property to the
trustee is generally accomplished by means of a properly executed deed recorded
in the county where the real property is located. FS 689.01, FS 689.06, FS
695.03
i. Trust documents, which complied with necessary formalities of two
witnesses and adequate legal description but contained no expression
purporting to convey, grant, or transfer real estate, could NOT be regarded
as deed conveying realty to trustees required to create living trust for the
realty
ii. The trustee should be given a legal title to trust property.
iii. It is not enough to mention the real property in the trust itself. The trust
instrument doesnt serve as a deed, b/c it doesnt say I grant this property
to the trustee. (See, Flinn v. Van Devere)
Intangible personal property: Transferring intangible personal property, such as
stocks and securities, usually requires contacting the applicable entity in order to
re-register the securities in the name of the trust.
Bank accounts: Can usually be transferred by retitling the account pursuant to
the banks procedures.
Cash: Cash can be transferred by writing a check payable to the trustee.
Tangible property
i. Tangible personal property that is publicly titled (e.g., a car or a truck)
would have to be properly retitled.
ii. If the items are particularly valuable (e.g., jewelry, household items, works
of art) or the settlor prefers to transfer them, generally such items are
transferred by a properly drafted assignment document (a deed of gift)
signed by the settlor and accepted by the trustee. In other words, the
standard property law requirements for ensuring a valid gift of the tangible
personal property (intent, delivery, and acceptance) should be
scrupulously met.
Life insurance proceeds: Life insurance policies are not typically transferred into
a revocable trust; rather, the trust is designated as the beneficiary under the
policy.
In whose names do you transfer the trust?
i. Generally, inter vivos transfers are to the named trustees of the named trust,
such as to Terry Thomas, trustee of Thomas Revocable Trust, because it is
the trustee who takes legal title.
ii. The trust is not an entity and, as such, assets should not be titled directly in
the name of the trust.
iii. Unless the trust specifically directs that the freely devisable homestead be
sold, the rights of the heirs attach at the death of the decedent, and the
property is protected from the claims of all creditors. (Engelke v. Estate of
Engelke)
B. Funding an Irrevocable Inter Vivos Trust
Such trusts can be used to save on taxes, complying w/property settlement
agreements and providing for incapacitated beneficiaries
Generally, any asset that can be placed in a revocable trust can also be placed in
an irrevocable trust

Page 68 of 97

Winter 2014
Professor
Maurer
Transfer of non-existing life policy owned by settlor trustee has to be renamed
owner and beneficiary of the policy (in revocable trust, trustee would be
beneficiary but not owner)
C. Funding a Testamentary Trust
The transfer of the trust res from the settlor to the trustee of a testamentary trust
is created thru a devise in a will (Specific, Demonstrative, General, or Residuary).
The testamentary trust will come into existence when the testator/settlor dies;
however, it will be funded when the personal representative distributes assets to
the trustee.
Because the trust is funded through a devise, the devise may abate or may be
subject to ademption.

Chapter 20: Revocable Trusts

Factors to consider:
(1)
Is the trust Revocable or Irrevocable?
(2)
Does the trust say that the trust can be amended/revoked?
(3)
If so, look to see how it can be amended/revoked.
**Both the Common law and FL Statutes allow an irrevocable trust to be changed and if
the trust says it is revocable, it can be amended/cancelled anytime by the settlor.

Revocable Trust is a trust that can be revoked by the settlor without the consent of
either the trustee or a person with an adverse interest. FS 736.0103 (15).
Before July 2007 the presumption was that all trusts were irrevocable unless expressly
stated. After July 2007 the presumption is that all trusts are revocable unless expressly
stated.
The settlor can choose to be the trustee or the beneficiary on his trust, but most
revocable trusts are set with the settlor being the beneficiary.

A. Non-testamentary Character of Revocable Trusts

A revocable trust may resemble a will, but it is not a will.
It doesnt matter if the trust has testamentary characteristics, if by the terms of
the trust an interest does not take effect in enjoyment or possession before the
death of the settler, the trust is not testamentary
A trust beneficiary (as opposed to a devisee under a will) obtains his property
interest when the inter vivos trust is created. In contrast, a beneficiarys interest
comes into existence the instant the trust is created, even if possessory right is
postponed to some distant future date and even if the enjoyment depends on the
settlors not changing her mind and revoking the trust.
B. Revocable Trusts and Probate
Even though FS 736.0403 requires for testamentary aspect of a trust to be
executed using will formalities, the revocable trust is not treated as a testamentary
trust, thus the trust res is not part of the settlors probate estate.
Some people create revocable trusts to avoid probate because the settlor already
transferred the title to his assets to the trust. In that case the trust would be
revocable until death, at which time it would become irrevocable.
i. However the grantor must actually have to fund the trust and transfer the
property to the trust.
ii. Still settlor should make a will to deal with the property not put in the trust,
allowing the trustee to provide the PR with money for administration
expenses.
Page 69 of 97

Winter 2014
Professor
Maurer
A revocable inter vivos trust avoids probate administration because the settlor
already transferred title to the assets prior to her death. (Although assets in a
revocable trust may be used to pay certain expenses and obligations of the probate
estate.) FS 733.607(2).
The interests of all beneficiaries of a revocable trust are subject to the trustees
duty to pay the expenses of the administration and obligations of the settlors
estate. i.
Even if the trust directs immediate distribution upon the settlors
death, the trustee cannot make complete distribution until provision has been
made for all the expenses, claims and taxes the trust may be obligated to pay, and
certainly not before these amounts are determined. (See, Parker v. Shullman)
C. Abatement of Assets under Trust FS 736.05053Trusts abate just as wills.
D. Designing a Revocable Trust
A revocable trust usually is designed with distribution provisions that apply during
the settlors lifetime or after the settlors death.
During the settlors lifetime, the settlor may choose to be the trustee or a cotrustee and may retain the right to direct the distribution and administration of the
trust assets. FS 689.075
The trust may contain:
i. Separate provisions that apply when the settler is incapacitated and unable
to act as trustee. In such cases the co-trust or a successor trust would
administer the trust and make distributions for the benefit of the settler.
ii. The trust may provide for outright distributions when the settler dies, or
may provide for the assets to continue to be held in trust for the
beneficiaries designated by the settler.
The trust provision would be an alternative to the use of a testamentary trust.
i. Often the settler will also have a will that provides for the residuary to be
distributed to the revocable trust (a pour over devise).
Pour Over willA will giving money or property to an existing trust.
This trust is liable for the deceased settlors debt.
E. Rules Governing Revocable Trusts
FS 736.0601-736.0604 has many of the provision governing a revocable trust.
i. 736.0601The capacity required by a settlor of a revocable trust is the
same as that for a will.
ii. 736.0603While a trust is revocable, the trustees duties are owned only to
the settlor.
iii. 736.0604Statute of limitations for contesting trusts that were revocable
immediately prior to the settlors death is 6mths after the trustee of the trust
notified the claimant.
iv. 736.0406Creation, amendment, or revocation of a trust (revocable or
irrevocable) procured by fraud, duress, mistake, or undue influence is void.
The remainder of the trust (not affected) shall be valid (if not invalid for
other reasons). Also by lapse, killer, divorce and accessions.
FS 736.0505provides that, during the settlors lifetime, creditors of a settlor of
a revocable trust can reach the assets held in a revocable trust regardless of the
named beneficiaries of the trust.
i. Under an irrevocable trust, a creditor of the settlor may reach the max
amount that can be distributed to or for the settlors benefit. (if more than
one settlor the amount cant reach that of the debtor settlor)
ii. By retaining the right to revoke the trust the settlor retains the ability to
reach the assets and, thus, so should the settlors creditors.

Page 70 of 97

Winter 2014
Professor
Maurer
In general an action to contest the validity of the trust (including capacity of the
settlor had when he created the trust) cannot be brought until the trust becomes
irrevocable by its terms or by the settlors death.
F. Amendment, Revocation, or Termination of Revocable Trust
In order to revoke or amend a revocable trust the settlor must have the same
capacity as required for a will.
We dont revoke a trust by physical destruction, but by writing, by making another
one, or by revoking it, and if there is real property, by transferring property back to
settlor. If that is the only property in trust, transferring the property would be
enough to terminate the trust.
The choices for revoking the trust are: (1) whatever means the trust say, (2) when
trust is silent, making sure either of the 4 requirements are missing; and (3) if
trust is silent, any method manifesting clear and definite intent that the trust
should end (ex: taking the assets out of the trust).
Revocation or Amendment of a Revocable trust is governed by FS 736.0602:
i. Absent contrary expressed intent, the settlor may revoke or amend a trust.
(n/a to instruments executed before 7/2007).
ii. Joint Trust: If a revocable trust has 2 settlors:
If it has community property, it may be revoked by either spouse
acting alone but may be amended only by joint action of both spouses.
If the trust has property other than community, each settlor may
revoke or amend the trust with regard to the portion of the property
each contributed to the trust.
The trust however may contain specific provisions governing
revocation. It may provide for example that the surviving settlor has
the right to revoke or amend the entire trust after the death of the
other settlor.
iii. Revocable Trust: A settlor (or agent under a POA) may revoke or amend a
revocable trust:
By substantial compliance with a method provided in the terms of the
trust; OR
If the terms of the trust do not provide a method by:
A later will or codicil that expressly refers to the trust or
specific devises property that would otherwise have passed
according to the terms of the trust.
Any other method manifesting clear and convincing evidence of
the settlors intent.
Ex: Citi bank acct under the name of the trust is left in a will. How is
it given away it if it is not probate property? By making the
amendment to the trust in the will he is removing the asset from the
trust.
iv. A trustee who doesnt know of a revocation or amendment isnt liable for any
distributions made or actions taken on the assumption that the trust had not
been amended/revoked.

Chapter 22: Trusts Providing Protection from Creditors

There are 3 categories of trusts: (1) Spendthrift, (2) Support, (3) Discretionary. (To
establish which one a trust is, we look at the wording of the trust to determine the
purpose of the trust.)
Page 71 of 97

Winter 2014
Professor
Maurer
Express trust must be established correctly before a court will enforce them.
o It must have the requisite substantive elements and comply with the mandatory
formalities in the applicable jurisdiction
One of the purposes that could be accomplished by the creation of a trust is asset
protection against creditors.
I.

Creditor Access
A fundamental principle of creditor access is that the creditor generally stands in the
shoes of the debtor. Accordingly a creditor can generally reach property the debtor can
access and freely alienate. By contrast a creditor of only one spouse generally cannot
reach tenancy by the entirety property because each spouse needs the consent of the
other spouse to alienate or encumber TBE property.
Ex: a creditor can reach a debtors interest in tenancy in common property
because the debtor/cotenant has a freely alienable interest on it.
Similarly, if an equitable interest is clearly determinable and freely inalienable by the
trust beneficiary, the beneficiarys creditors can generally reach them.
o Settlors can avoid this result by placing restrictions on the beneficiarys right to
access and alienate its benefits in the trust.
A. Spendthrift Provisions FS 736.0502 (Spendthrift person is one prone to overspend)
Spendthrift provisions are usually upheld because the trust assets were not
originally owned by the beneficiary, but rather by the settlor. The purpose of the
provision is to protect the trust funds for the beneficiaries against their creditors
and improvidence.
FS 736.0502A spendthrift provision is valid only if it restricts BOTH voluntary
and involuntary transfers of a beneficiarys interest. (n/a to trusts created before
7/2007)
i. There are 2 aspects of this trust:
Beneficiary is precluded from giving away, transferring, or voluntarily
alienating the trust.
Beneficiarys creditors cannot grab the assets.
No interest of any beneficiary of this trust is assignable before
payment or would be liable for the beneficiarys debts or
obligations and shall not be subject to attachment.
A beneficiary shall not alienate, encumber, or hypothecate his
interest in this trust. Likewise, such interests shall not be
subject to the claims of his or her creditors, or be liable to
attachment, execution, garnishment, sequestration or other
process of law.
A beneficiary shall not have power to dispose of or charge by
way of anticipation or assignment any interest in this trust, and
the beneficiarys interests shall not be subject to his creditors in
any legal or equitable process.
However, this clause does not prevent a trustee from selling trust
property.
ii. Language restricting a beneficiary from selling, giving away, assigning, or
otherwise alienating his beneficiary interest is sufficient for establishing a
spendthrift.
iii. Once the funds are released from the trust to the beneficiary they are up for
grabs by creditors
B. Exceptions That Give Creditors Access FS 736.0503 A spendthrift provision is
unenforceable against:
Page 72 of 97

Winter 2014
Professor
Maurer
Type of Creditor:
i. A judgment creditor who has provided services for the protection of a
beneficiarys interest in the trust.
ii. A court order against the beneficiary for the support/maintenance of his
child, spouse, or former spouse.
iii. A claim by the State of Florida or U.S, as the law allows.
Enforcement of a writ of garnishment on a trust with a spendthrift
clause will ONLY be used as a last resort. (See, Barcardi v. White)
Different Distributive Provisions
i. Mandatory distribution trust: has language of Trust shall distribute all
interest income quarterly to A.
In a Mandatory distribution trust, a special creditor can reach the
assets; however, a creditor cannot reach assets in a discretionary
trust until after the trustee exercises its discretion and makes a
distribution.
Creditor can compel if the trustee if the claim is for education, health
support and maintenance
ii. Support distribution trust: Has language of Trust shall distribute such
income as necessary for As support, health and education
iii. Purely Discretionary trust: Language of Trustee may, in his sole absolute
and unfettered discretion, distribute some, all, or no income to A or instead
distribute such income to other trust beneficiaries.
iv. If the beneficiary has express control over the trust and the trust allows the
beneficiary to control all of the trust assets by terminating or demanding
distribution of the trust assets, then a court will allow a creditor to reach the
entire trust, otherwise, the court cannot allow it. (See, Miller v. Kresser)
Self-Settled Trusts (A trust in which the settlor is also the beneficiary)
i. Self Declared Trust in one in which the settlor is also the trustee.
ii. See, Menotte v. Brown (In re Brown), Brown received $250k from her
mom and, so that she doesnt spend it on alcohol, decided to create a
spendthrift trust naming herself as the only beneficiary. Income was to be
given to her periodically. She later filed for bankruptcy and tried to claim
that the trust couldnt be touched. The court held that if a settlor has the
right to revoke a trust, all of the trusts property would be subject to the
claims of the settlors creditors.
iii. Creditors however could only get what the settlor-beneficiary could get.
C. Support Trust: A trust where at least one person gets support for (health, food, clothing,
shelter, etc.) There is no need to say that is a support trust, but it would be smart to do it
to leave no room for doubt.
If a settlor has the right to revoke a trust all of the trusts property would be
subject to the claims of the settlors creditors.
i. If the settlor created an irrevocable trust and he is one of, but not the sole
beneficiary, the settlors creditors could reach only the maximum that could
be distributed to for the benefit of the settlor/beneficiary.
ii. Ex: Trust directs the trustee to pay whatever needed to pay for education of
beneficiaries. When B attains the age of 25 he can retain of whatever in
the trust. When 30 he can take it all out. When B turns 24 he signs for a car,
makes the 1st payment and then stops. The lender asks that trustee give it
up. What is the trustees answer? Protected under the spendthrift clause.
When he turns 25 creditor shows up again, what happens then? The creditor
has rights to as much as beneficiary has. Thus he would have rights to the
.
Page 73 of 97

Winter 2014
Maurer

Professor

iii. TIP: If no spendthrift provision in the trust, look to see who has the
discretion over the trust. The trustee must have total discretion in order for
creditors not to attach.
D. Discretionary trusts FS 736.0504
When trustee is given discretion to pay certain taxes, there are some trusts that
even though settlor is not a beneficiary, they are responsible for the taxes on the
income earned. So here the trust can give some money back to the settlor to
reimburse for such cost
If the trust is discretionary, the creditor may not compel the trustee to make
distributions that are subject to the trustees discretion, or attach or reach the
interest that the beneficiary might have as a result of the trustees authority to
make distributions.
Notes:
i. FS 736.05055Trustee is req to file a notice of trust with the court when
the settlor of a trust dies. It tells anyone who checks the court files that the
settlor is dead and the trust is liable for the creditors claims to the extent
that his estate is insufficient to pay them.
ii. FS 736.0507. Personal obligations of trusteeTrust property is not
subject to personal obligations of the trustee, even if the trustee becomes
insolvent or bankrupt.

Chapter 24: Termination and Modification of Irrevocable Trusts Under

Common law and Statutory law
I.

Common Law
A. Non-judicial Termination and ModificationCommon law (**STILL VALID LAW**)
An irrevocable trust may be terminated with consent of all beneficiaries as long as trust
has no material purpose that would be violated by early termination.
Material PurposeMaterial purpose is when trustee has discretion as to when
and how to make distributions to beneficiaries (i.e. support or discretionary trust)
and when distributions were postponed until beneficiary reached a certain age or
milestone (e.g. age 30, marriage, or graduation).
i. Types of material purpose (situations where court could grant termination or
modification of trust):
Trust is dry (no duties to any of the beneficiaries imposed on trustee)
Discretionary trusts
Trustee is given some discretion over the trust but it may vary.
Can be about income distributions, principal distributions or
both.
If there are several beneficiaries trustee can have a
sprinkle/spray beneficiary where he has the discretion to
sprinkle the assets as he sees fit.
Support trusts
Spendthrift
Postponement of Possession until a specified event (i.e. reaching age
of 21, graduating law school, etc.)
ii. Ex: Settlor creates and irrevocable trust and income is to go to A and if A
dies to B. Settlor no longer has any interest in the trust but the trust says it
is a spendthrift trust. If beneficiaries agree, can they go to T and ask for
termination? No. The trust has a material purpose.
Page 74 of 97

Winter 2014
Maurer

Professor

iii. Once the settlor assures that the material purpose has been fulfilled, and
there is no evidence to the contrary, the trustee cannot withhold
distribution.
iv. Ex: S creates a Trust with $1m. T is to provide to A for support of A as
needed at any time. (Support and Discretionary). A sells his interest to B. Do
we have an unfulfilled material purpose? Since A isnt the beneficiary the
purpose doesnt exist anymore thus B can terminate the trust immediately.
Had there been a spendthrift provision it would have prevented A from
alienating his interests.
Spendthrift restrictions are not sufficient in and of themselves to
establish, or to create a presumption of, a material purpose that would
prevent termination by consent of all of the beneficiaries.
Unanimous Consent of beneficiaries (Agreement of all interested parties)
i. Under the common law, sometimes its hard to get them ALL to agree or to
locate them ALL. (i.e. when trust included the grandchildren and they hadnt
been born yet.)
ii. If settlor is alive, he may object. What if he objects?
Ex: Settlor Sam creates a trust for the benefit of his wife and 2 kids.
The beneficiaries say that they want to terminate the trust and settlor
says no. Trustee goes ahead and obtains their consent. Can settlor sue
trustee? Under common law, No! Settlor has no rights.
iii. When all the beneficiaries of a trust consent to its termination, the trust
could be terminated despite of the consent of the trustee. A trust will not be
set up or continued merely for the benefit of trustee(s). (See, White v.
Bourne)
iv. See, Goldentrester v.Richard (In re Estate of Goldin), where
beneficiaries living in USSR were supposed to get $500 semi annually. The
trust gave trustee discretion to refrain from making the distribution on a
determination that it would be impossible, impractical or unlikely to reach
beneficiaries. Trustee refrained due to alleged politics of the Soviet Union.
Ct held that even when the trustee is given complete discretion to make
decisions on the administration of a trust, a court may intervene to make
sure that the settlors intent has not been defeated by his decisions.
Evidence was presented that distribution was not impossible/impracticable
or unlikely to reach beneficiaries.
v. Settlor may modify trust agreement by surrendering privileges but may not
modify the trust to the prejudice of the beneficiaries without their consent.
(See, Bieley v. Bieley)
vi. What if one or more of the beneficiaries of an irrevocable trust want to
terminate but the other doesnt want to? Under common law, if the
beneficiary who objected to an irrevocable trust, the fact that he or she
objected didnt really matter.
Notes:
i. Partial TerminationNOT recognized under common law.
Ex: Income to A and B. If one dies income is to go to whoever is living.
If they both die then income to the First Baptist church. A is not happy
with Ts investment. A wants to terminate but B doesnt. A goes to T
and wants to terminate their part of the trust. Can he do that?
Because the assets would financially grow and become larger for the
beneficiaries that follow, courts refuse to recognize partial
termination under common law.
Page 75 of 97

Winter 2014
Maurer

Professor

ii. If theres a material purpose, and it hasnt been fulfilled, is there any way to
get it terminated early? Yes ONLY with the settlors consent.
In such a case, the trust could be terminated only by unanimous
consent of the beneficiaries if the settlor waived the material
purpose. If, HOWEVER, the settlor (1) was dead, (2) was not
legally competent to waive the material purpose, OR (3) refused
to waive the material purpose, the beneficiaries could NOT
terminate using non-judicial termination.
B. Judicial Termination and ModificationCommon law
If the requirements for a Non-Judicial termination could not be met, a court could
modify an irrevocable trust if the requested modification was due to a change in
circumstances not anticipated by the settlor and certain other requirements were
met. The objective is to give effect to what the settlors intent probably would have
been had the circumstance in question been anticipated.
Restatement 66 provides that:
i. The court may modify an administrative or distributive provision of a trust
where, because of circumstances not anticipated by the settlor, the
modification or deviation will further the purposes of the trust.
ii. If the trustee knows or should know of circumstances that justify judicial
action with respect to administrative provision, and of the potential of
substantial harm to the trust or its beneficiaries, the trustee has a duty to
petition the court for appropriate modification from the terms.
Ex: Does the Trustee have an obligation to go to the court if the trust
is being threatened by an administrative provision? Yes. A duty is
imposed on Trustees to seek remedies and not let the trust fall apart.
The court will direct or permit the trustee to deviate from a term of the trust if,
owing to circumstances not known to the settlor and not anticipated by him,
compliance with the terms of the trust would defeat or substantially impair the
accomplishment of the purpose of the trust; and in such case, if necessary to carry
out the purpose of the trust, the court may direct or permit the trustee to act
contrary to the intent of the settlor in the trust.
See, Mills v. Ball, The trust called for 4 trustees and their successors. With time
the trust grew considerably in size. Sickness and age debilitated Ms. Dupont and
other trustees. When one of them died, the trustee decided to replace him and
given the size of the trust add two additional trustees (total of 6). An original
trustee objected. Rule: The court has the power to relieve a trustee from any
restrictions on his power and duties placed upon him by the governing instrument.
If literal compliance with governing instrument became impossible, or would
defeat the purpose of the trust, court may grant administrative deviation.
Unanticipated change in circumstances that the settlor did not anticipate, absent
administrative relief, would defeat the purpose of the trust.
Modification or termination of uneconomic trust. FS 736.0414
i. Gives trustee the right, but not obligation, to terminate a trust that is less
than feasible to operate because it has less than $50k, after notice is given
to the beneficiaries.
ii. Upon the request of a trustee or beneficiary, a court can terminate a trust or
remove a trustee, if the trusts value is insufficient to justify the costs of
administration. (Beneficiaries can request the removal of Trustee when trust
is uneconomic.)
iii. Upon termination of the trust for this reason, the trustee must distribute the
trust property in a manner consistent with the purposes of the trust.
Page 76 of 97

Winter 2014
Maurer

Professor
iv. This provision applies to Spendthrift provisions, unless the trust indicates
otherwise.
v. Ex: Mom is survived by Deborah drug addict daughter. Trust falls below
$50k. Terminating a trust and giving Deb the money would be disastrous
here given the daughters addition ($50k is a lot in drugs). This is why the
statute says the Trustee MAY terminate, not MUST.

II.

Florida Statutory Law on Termination and Modification

A. Non-judicial Termination and Modification
FS 736.0412 allows for non-judicial termination or modification by the
beneficiaries by the beneficiaries. (Statutes are in addition to Common law nonjudicial termination/modification).
Applies only if 4 requirements are satisfied:
There must be unanimous consent of the qualified beneficiaries;
o Qualified Beneficiary: Includes any living beneficiary who is entitled
to benefit from the trust presently AND anyone who would get the
benefit if the current living beneficiary were to die today.
There must be consent of the trustee(s) (Not including successor trustees);
The settlor must be dead at the time the modification or termination is
sought; and
Modification/Termination must not be prohibited.
A settlor can block FS 736.0412 if he uses the shorter rules against perpetuities
period (common law 21yrs or 90 yrs), instead of 360 years for the trust, and the
terms of the trust do not expressly allow for non-judicial modification.
The statue is also blocked for any charitable trust for which a deduction is
allowed or allowable under the internal revenue code until the termination
of all charitable interest in the trust.
Does NOT APPLY to trusts created BEFORE January 2001.
Does NOT APPLY to trusts that use RAPfor trusts, there are 3 RAP:
Common law rule from property (A life in being + 21yrs)
90-year wait and see rule
360-year wait and see rule
If the settlor uses the 21-year or 90-year rulethe trust CANNOT be non-judicially
modified under 736.0412 UNLESS the trust expressly permits the beneficiaries to
do so.
Differences between FS 736.0412 and Common Law for non-judicial
termination in that:
Under common law an irrevocable trust can be modified/terminated with
unanimous
consent
of
the
beneficiaries,
so
long
as
the
modification/termination does NOT violate the settlors material purpose.
(Trustees wishes are irrelevant)
o In contrast, FS 736.0412 requires the consent of the trustee.
Under common law a trust that has a material purpose can be
modified/terminated with unanimous consent of the beneficiaries and the
settlor.
o In contrast, FS 736.0412 only applies when the settlor is already
dead.
Any beneficiary can institute a court proceeding to disapprove a proposed nonjudicial modification/termination and are entitled to notice of non-judicial
modifications/terminations (no need to be qualified).
Page 77 of 97

Winter 2014
Professor
Maurer
Settlor retains the power to modify a trust even if it is irrevocable. This is why a
trust cannot be modified/terminated UNLESS it is or until it becomes irrevocable.
Administrative deviationwhere the court isnt allowing a trustee to change
beneficiaries or gifts, but instead allows changes to deviate from the administrative
direction in the trust.
Trustee can go to court to request it
In emergencies, the court may use its equitable power to change
administrative deviation to save the trust.
Consent of beneficiaries is NOT required but they can go to court with the
approval of some or all of the beneficiaries.
Trustee cant ignore the terms and just administer the trust how he wants.
He MUST obtain court approval and authority.
It is usually authorized where there is a THREAT to the trust. (i.e. wanting to
change apple stocks to Google stockwill not be allowed). It doesnt matter
if trustee doesnt like the provisions.
o Ex: Trust has treasury bonds. Beneficiaries are upset because the
bonds dont yield much money. The Trustee goes to court to have it
changed, the court will not change it because there is no threat to the
trust. They will have to deal with the settlors conservative investment
methods.
Ex: Belame created a trust with 4 individuals as trustees and a bank. Trust said
that if at any time the bank stopped serving, the people SHALL choose a successor
corporate trustee. Corp trustee resigned and a dispute arose. Whether Corp
trustee was needed. Trustees tried to get the trust modified to eliminate the req.
that there be a corp trustee. Settlor opposed it (although he had no say). The ct
said they couldnt grant it because it was inconsistent with settlors intent.
Ex: Gma creates a trust for her kids A, B, C and if one of them dies their kids are to
get. Gma became incompetent. A dies and is survived by X. X owes 9million
dollars. Gma asset is a family owed business. If Xs creditors get to it then
everyones interest is affected. What can be done to avoid this? Trustee can go to
the court and petition to modify the terms of the trust and that any gift to X would
be in a spendthrift trust.
B. Judicial Termination and Modification
Termination and Modification Consistent with Settlors Intent. FS
736.04113 A court can modify/terminate an irrevocable trust that is consistent
with settlors intent upon petition of any qualified beneficiary or trustee under 3
circumstances:
If the trusts purposes have been fulfilled or have become illegal, impossible,
wasteful or impractical.
If, as a result of unanticipated changes in circumstances, compliance with
the original terms would defeat or substantially impair a material purpose of
the trust.
A modification is also permitted if a material purpose no longer exists.
**A settlor cannot block a modification under this statute**
Termination and Modification for Best Interests of Beneficiaries. FS
736.04115 A court can modify/terminate an irrevocable trust when compliance
with the existing terms of the trust is not in the best interest of the beneficiaries
upon petition of any qualified beneficiary or trustee.

Page 78 of 97

Winter 2014
Maurer

Professor

Any modification under this provision must conform with the settlors intent,
to the extent possible, taking into account current conditions and the best
interest of the beneficiaries.
Because the best interest of the beneficiaries controls, a court may modify
the trust contrary to the settlors intent.
A settlor can block modifications for the best interest of the beneficiaries by:
Using the shorter rule against perpetuities period (common law lives
in being plus 21 years, or 90 years), instead of 360 years for the trust,
and
Including a trust provision that expressly prohibits judicial
modification.
In the case of a longer-term trust (360) judicial modification
may occur even if the trust prohibits.
A rationale behind this connection between the duration of the trust and
modification is that it serves to maintain proper balance between the
settlors wishes (dead hand control) and the beneficiaries need.
Similarities between FS 736.04113 and FS 736.04115
Under BOTH judicial modification sections, a trustee or a qualified
beneficiary may ask the court to modify/terminate the trust.
Under BOTH judicial modification sections, a court may consider:
1. The terms and purposes of the trust
2. The facts and circumstances surrounding the trusts creation and
3. All relevant extrinsic evidence (beyond 4 corners of instrument)
Applies ONLY to trust created on or AFTER Jan 1, 2001.
BOTH judicial modification sections expressly provide that a spendthrift
provision is only a factor that the court should consider.
A spendthrift provision is only 1 factor the courts should considerdoesnt
automatically bar modification.
If settlor used shorter rules of RAP AND trust expressly prohibits judicial
mod, then u cant use judicial modification.
C. Other Termination, Modification, and Reformation Statutes
FS 736.0410: Trust terminates to extent trust expires, is revoked or is properly
distributed pursuant to terms of trust.
See, Clement v. Charlotte Hospital Assn, Inc., where a trust was set up
to ensure that a hospital was built on land in trust. Once built, the trustees
didnt want to turn over the deed to the land. Court held that a trust estate
is vested in the trustee, but its duration and extent are governed by the
requirements of the trust. When the purposes of the trust are accomplished
the trust ceases to exist and the trustees titles become extinct.
FS 736.0413: A court may modify/terminate a charitable trust, in any manner
consistent with the settlors charitable purpose, when its purpose becomes
unlawful, wasteful, impossible or impracticable to achieve. (Cy Pres Doctrine)
Cy Pres doctrine: When a gift is made by will or trust (usually for
charitable or educational purposes), and the named recipient of the gift does
not exist, has dissolved, or no longer conducts the activity for which the gift
is made, then the estate or trustee must make the gift to an organization
which comes closest to fulfilling the purpose of the gift.
Ex: Settlor created an irrevocable Trust with $100k. T is to use all income as
he sees fit and give to students at ABC law school (discretionary and
support). Years after the creation of the trust, ABC law school closes down.
What happens with the money? If someone can establish that the purpose
Page 79 of 97

Winter 2014
Maurer

Professor
was to help students in Broward county law schools, and evidence is
presented to support, then changes can be made. If the trust fails the money
goes back to the settlor.
FS 736.0016 authorizes modification to achieve a settlors tax objective.
FS 736.0415 authorizes reformation by a court specifically to correct a trust
provision, even if unambiguous, which does not reflect the settlors intent due to
mistake of fact or law whether in expression or inducement.
Claim can be brought by the settlor or any interested party.
Requires a showing of clear and convincing evidence to determine
settlors intent and that it was affected by mistake and the terms reflect the
settlors mistake in belief.
o Clear and convincing evidence must be of such weight that it
produces a firm belief or conviction of the truth of the
assertions.
Available for Mistake in the execution, Mistake in belief, and Mistake of fact
or law.
Court can use extrinsic evidence to determine settlors intent.
Common law only allowed scriveners error claims.
How can beneficiaries meet the unanimous consent requirement for non-judicial
modification and termination if one or more of them has not born yet?
FS 736.0304 Representation by person having substantially identical
interest. Unless otherwise represented, a minor, incapacitated, or unborn
individual, or a person whose identity or location is unknown and not
reasonably ascertainable, may be represented by and bound by another
person having a substantially identical interest with respect to the
particular question or dispute, but only to the extent there is no conflict
of interest between the representative and the person represented.
FS 736.0305Appointment of representative. If the court determines
that an interest is not represented, or that the available representation
might be inadequate, the court may appoint a representative.
FS 736.0306Designated representative. If specifically nominated in the trust
instrument, one or more persons may be designated to represent and bind a
beneficiary and receive any notice, information, accounting, or report.
However, that designated person may not represent and bind a beneficiary
while that person is serving as trustee, and may not represent and bind
another beneficiary if he is also a beneficiary, unless:
o That person was named by the settlor; or
o That person is the beneficiarys spouse or a grandparent or
descendant of a grandparent of the beneficiary or the beneficiarys
spouse.
FS 736.0111 provides that interested person may enter into a binding non-judicial
settlement agreement with respect to any mater involving a trust. These
agreements however, are valid only if their terms and conditions could be approved
by a court.
FS 736.04117 allows a trustee who has absolute power to invade the principal of
a trust to transfer those assets to a new trust instead of distributing the principal
outright to the beneficiary.
The beneficiaries on the second trust must be same as the ones in the first
trust.
The second trust may not reduce any fixed income, annuity, or unitrust
interest in the assets of the first trust.
Page 80 of 97

Winter 2014
Maurer

Professor

An absolute power to invade principal is not limited to a specific purpose

(i.e. health, education, etc.). An absolute power is for purposes such as the
best interests, welfare, comfort, happiness, maintenance, or support.
FS 736.0808 Powers to direct.
The trustee may follow a direction of the settlor that is contrary to the terms
of the trust while a trust is revocable.
If the terms of a trust confer on a person other than the settlor of a
revocable trust the power to direct certain actions of the trustee, the trustee
shall act in accordance with an exercise of the power unless the attempted
exercise is manifestly contrary to the terms of the trust or the trustee knows
the attempted exercise would constitute a serious breach of a fiduciary duty
that the person holding the power owes to the beneficiaries of the trust.
The terms of a trust may confer on a trustee or other person a power to
direct the modification or termination of the trust.
A person, other than a beneficiary, who holds a power to direct is
presumptively a fiduciary required to act in good faith with regard to the
purposes of the trust and the interests of the beneficiaries. The holder of a
power to direct is liable for any loss that results from breach of a fiduciary
duty.
FS 736.0105 Default and mandatory rules.
Except as otherwise provided in the terms of the trust, this code governs the
duties and powers of a trustee, relations among trustees, and the rights and
interests of a beneficiary.
The terms of a trust prevail over code except: (See Statute Book Tab)

Chapter 27: Future InterestsRule Against Perpetuities

I.

Trusts invariably involve beneficial interests that are dependent on future events. They
almost always involve distinctions between present interests beneficiaries and future
interest beneficiaries.
o Ex: A trust can give the trustee absolute discretion whether to distribute any trust
income, or to accumulate trust income and distribute it with the principal later. In
that case, the interest of the beneficiary will not vest until the trustee exercises his
discretion, thus the equitable interest might be affected by the rule.
Review of Future Interests
A. Classifying Interests
Words of purchase are used to denote the recipient of the interest.
Words of limitations set forth the duration of the interest received by the
recipient
i. Ex: income quarterly to H for life. The words of purchase are to H and
indicate that he is the recipient of the equitable interest. The words for life
are words of limitation indicating the duration of Hs interest in the trust.
Three steps for classifying interest and estates created in an instrument are
as follows:
i. First: Identify the words of purchase to determine the various recipient of
the property interest (grantees, devisees, beneficiaries)
ii. Second: For each purchaser, classify the interest the person obtains as
either a present or future interest. The interest is a present interest if
enjoyment or possession begins as soon as the interest is created:
Page 81 of 97

Winter 2014
Maurer

Professor

When the interest created is a present interest we can go directly to

step three
When the interest created is a future interest it is necessary to
classify the particular type of future interest obtained.
It is important to recall that a testamentary trust only creates
property interest when the will containing the trust serves to
transfer property.
Ex: Testator says: all trust income to husband for life and upon
his death to our son A. Husband would have a present
(equitable) interest, and A has a future equitable interest. It is
future because possession is delayed death of husband.
In an inter vivos trust, whether revocable or irrevocable, the
beneficiary is deemed to have an interest as soon as the trust is
created, regardless of being a present of future interest.
iii. Third: For each purchaser we must determine which type of estate the
interest holder obtained.
Ex: Settlors will includes a testamentary trust proving that All trust
income quarterly to H for life, upon Hs death corpus to my child,
Andrew. Upon settlors death H has a present interest. Andrew has a
future interestvalid upon Settlors death.
Had the trust been an inter vivos trust, the interest is valid
upon the creation of the trust.
Future Interests Retained by Grantor: A future interest can be retained by the
grantor (settlor) or given to a grantee (beneficiary). When retained by the grantor,
there are 3 types:
i. Possibility of Reverter: A future interest retained by the grantor when he
has transferred a fee simple determinable (Usually distinguished by words
like WHILE, UNTIL, OR SO LONG AS). Upon breach of the condition
accompanying a fee simple determinable, the property automatically revert
to the grantor holding the possibility of reverter.
ii. Right of Re-entry: The future interest retained by the grantor when he has
transferred a fee simple subject to condition subsequent. (Usually
distinguishable by words like PROVIDED THAT, ON CONDITON THAT, OR
BUT IF) Upon a breach of the condition accompanying a fee subject to
condition subsequent the property does not automatically revert to the
grantor. Instead the grantor must exercise the right of re-entry for the
property to revert to him.
iii. Reversion: Arises when the grantor owns a fee simple absolute and does
not give away the entire estate, thus retaining a future interest that is
neither a possibility of reverter nor a right of re-entry.
Ex: When a life estate is conveyed and the grantor did not disposed of
the rest, the property reverts back to the grantor at the death of
grantee. The future interest settlor retained in this case is functionally
equivalent to a reversion. In trust law parlance, this is referred to
as a Resulting Trust.
Resulting Trust: can arise when a transfer to a trust does not
completely dispose of the trust property.
Future Interests Received by Grantees: A grantees future interest may be
classified as a remainder or an executory interest.
(a)Remainders: A future interest in someone other than the grantor that will
become a present possessory estate, if ever, immediately upon the natural
expiration of prior non-fee simple estates created simultaneously with it.
Page 82 of 97

Winter 2014
Maurer

Professor

Remainders can be vested or contingent.

A remainder is vested if:
i. There is no condition precedent, and
ii. At the time of creation there is at least one identified
person that could take the interest right away.
There are 3 types:
i. Indefeasible vested remainder: The interest cannot be
diluted or divested (e.g., Trust income to A for life, the
corpus to B)
ii. Vested remainder subject to open: It is remainder in a
class (to my children, my nieces, etc). A class members
interest could be diluted because additional members
may join in the class.
iii. Vested remainder subject to complete divestment: A
remainder subject to a condition subsequent. The
condition subsequent could result in terminating the
remainder holders interest. (e.g., All trust income to A
for life, then corpus to B, but if B divorces C, then to D)
A contingent remainder arises when there is a condition
precedent or when the remainder holder is unborn or
unascertained when the interest is created.
The law of trust adds a wrinkle to the differentiation between
contingent remainders and vested remainders subject to complete
divestment. A remainder interest that at first appears to have no
express condition attached directly to it (precedent or subsequent)
can be deemed to be a vested remainder subject to complete
divestment if it is created in a revocable trust.
Ex: S creates a revocable inter vivos trust providing: all trust
income quarterly to H for life; upon death of H, corpus to my
child, Andrew. Andre has a vested remainder because there is
no condition precedent and we can identify him. However, S
could divest Andre of his vested remainder by revoking the
trust.
ii. Executory Interests: A future interest in someone other than the grantor
that is not a remainder. Can be created by outright gift or transfer in a trust.
There are two types of executory interests:
Shifting executory interest: In order to become possessory it
must cut or divest some interest in another grantee.
Springing executory interest: In order to become possessory
the interest must divest the grantor following a certain period
of time during which no other grantee is entitled to possession.
(e.g., To A upon her graduation but A does not graduate
before grantor dies)
i. Ex: To Angela upon her graduation At testators death
Angela has not graduated. Her interest is springing
because it will become possessory after a period of time
during which no other grantee would be entitled to
possession.
B. Classifying Estates: The last step is to examine the words of limitations and determine
the holders estate interest. (fee simple or non-fee simple)
Types of Fee Simple Estates:
Page 83 of 97

Winter 2014
Maurer

Professor

Fee Simple Absolute Absolute ownership that can be devised or passed on

to heirs
Fee Simple Determinable Terminates automatically upon the occurrence of
stated event
Fee Simple Subject to Condition Subsequent An estate subject to the
grantors power to end the estate if some specified event happens.
Determinable and Subject to Condition Subsequent are by nature
defeasible.
Ex: To Andrew for life as long as Andrew does not start smoking
again. Andrew has a defeasible life estate and grantor has a
reversion that will become possessory either at Andrews death or if
Andrew smokes again.
Types of Non-Fee Simple Estates:
Fee Tail An estate that automatically descended to the heirs of an estate
owner upon his death and continues so descending to the lineal descendants
until the entire line of lineal descendants became extinct (i.e. the bloodline
ended)
Life Estate An estate held only for the duration of a specified persons life.
Leasehold A tenants possessory estate in land or premises.
Speck v. Bussey (In re Estate of Colding): Testator left 100 shares of stock to
sister and upon her death to 2 of her nieces. Ct held that the devise of an estate in
fee simple may be limited by a subsequent valid provision that the estate shall go
over to others upon the happening of a named contingency or that it may be
restricted by subsequent provisions in the will so that in effect it becomes an
estate for life as to the remainder.
Brown v. Harris: Testator left real properties to her husband to use as he saw fit
during his life and then to niece and nephew. Ct held that the testators wishes
shall prevail and the words that testator used indicated that husband had a life
estate and thus no power to dispose of the property.
II.

Common law Rule other than Rule Against Perpetuities: Other rules that might alter the
classification of the interests created are:
A. Doctrine of Worthier Title **Abolished in Florida** FS 689.175
As per the doctrine, if a grantor conveyed a life estate to a grantee and also
conveyed a remainder to a grantors heirs, the remainder would be presumptively
void and the grantor would instead have a reversion.
This doctrine ONLY applied when the grantor included words like to my heirs
(meaning this that would inherit under intestacy).
However if the grantor included words such as to my children or words that did
not require resort to the intestacy statutes, the doctrine would not apply
The doctrine was not a rule of law but a rule of construction. It only created a
presumption as per the grantors intention, which could be rebutted.
If you had a gift made by an owner to an owners heirs at law, next of kin, etc. That
language gave rise to the presumption hat the grantor had a reversionary interest.
(Relatives only of course)
B. Rule in Shelleys Case: Applied when there was a gift to grantee and grantees
heirs/next of kin and the estates were both legal and equitable.
When you had one document (will, trust, deed) that purported to create a life
estate in grantee and contingent remainder in grantees heirs and either both were
Page 84 of 97

Winter 2014
Maurer

Professor

legal or both were equitable, the rule caused the gift to merge so that the gift to
the heirs became the gift to the grantee.
i. Ex: If an instrument stated to As for life, then to As heirs the application
of the rule could covert the contingent interest of As heirs into a remainder
in A. Since A would now hold a life estate and a remainder, the doctrine of
merger would apply and A life estate would merge with the remainder. A
would now hold the entire estate.
FS 689.17 changed the application of the rule and stated that when an
instrument purport to create a life estate in grantee A and contingent remainder in
As heirs, what is created is a life estate in A with remainder per stirpes to As
lineal descendants (not heirs) in being at the time said life estate said life estates
commences, subject to open for the life of A.
C. Rule of Destructibility of Contingent Remainders: A contingent remainder was
destroyed if it was still contingent at the time the preceding estate ended. **VALID
ONLY IN FLORIDA**
Ex: To A for life, and if B has reached the age of 21, to B. A dies, leaving behind B
who is only 19. Bs contingent remainder has failed to vest in time and is thus
destroyed.
Rentz v. Unborn Grandchildren of Rentz: Testator left life estate to wife and 3
kids and a remainder in his grandchildren per stirpes. At his death no grandkids
were born. Wife sought to have the interest destroyed under the rule and revert to
the testator (in turn belonging to the kids under intestacy) because no
grandchildren had born at the time of death of decedent, which caused the failure
of the contingent interest on the grandchildren. The court held that the time to
determine if the doctrine applies is at the end of the life tenancy, not at the
death of the testator. Upon the grant of a life estate with the remainder in
unascertained group of unborn people, the remainder would be contingent, but at
the moment that a member of that group born, the remainder becomes vested as
fully, and if this member dies before the end of the life tenancy, the life estate
descends to his heirs.
III.

The Rule Against Perpetuities

A. Classic Formulation
Under RAP, No interest is good unless it must vest, if at all, no later than 21 years
after the death of some life in being at the creation of the interest (plus the period
of gestation).
The RAP is concerned with the remoteness of vesting, not with when a future
interest takes possession
An interest generally vests when the condition that was making it contingent is
satisfied.
The Rule also applies to future interests in a class.
i. When a class gifts vests, it is no longer possible for anyone else to join the
class.
ii. A class can close naturally because it is physically impossible for another
member to join, or because of the class-closing rule.
iii. The class-closing rule provides that when time for possession has arrived
and at least one member of the class is ready to take, the class closes.
iv. The class-closing rule (rule of convenience) makes it possible for potential
members of the class to be precluded from joining the class because the
class was closed.
B. Future Interests that are Vulnerable
Contingent remainders
Page 85 of 97

Winter 2014
Professor
Maurer
Executory interests
Any interests in a class (all or nothing rule): even if one person could join the class
beyond the perpetuities period, the entire class gift is void.
C. Method for Testing: The rule is concerned with remoteness of vesting. If the interest
could possibly vest beyond the perpetuities period, the entire interest is void at inception.
When to test: For purposes of the rule an interest is tested when is created:
i. In a deed when the deed is properly transferred.
ii. In an irrevocable trust when the trust is created.
iii. By a will, upon the death of the testator.
iv. In a revocable trust when the trust becomes irrevocable.
Time for Testing
i. An interest that is vulnerable against the RAP is not automatically void. It is
only void if at time the interest is created it is possible for the interest to
vest beyond the perpetuities period. If it is impossible to vest beyond the
period then the interest is valid.
At common law, the period is lives in being when the interest is
deemed created plus 21 years.
Technically, any person who is alive when the interest is created can
be tested under the common law rule to see if that person qualifies as
the life in being who serves to validate the interest.
ii. You must answer
Is it possible for (the condition to be met/someone join the class) to
occur more than 21 years after (possible measuring lifes) death?
Ex: T transfers 100k that he leaves in a testamentary trust. T is to invest the money
and give the income and principal to individuals living on the same block as his
home at the time of Ts death. Distribution is not to begin until the 1st person is to
live on the moon. On the day T died, we have to make sure that the interests of his
neighbors will vest or fail. Can someone live on the moon within 21 yrs? If the
answer is idk then violates RAP.
Ex: T is to give income to A for life or 30yrs (which ever comes first) and on As
death pay income to the settlors then living descendants, if no living descendants
then to Bob. Does this fail for violating RAP? Yes. Its not possible that as of day 1,
the interests would be vested by any descendants.
D. Charity to Charity Exception: The RAP does not apply to interests in trust to a charity
that are preceded only by another charitable interest.
Likewise, if the charity has a present interest and the future interest is on an
individual, the charity-to-charity exception does not apply.
E. Floridas Uniform Statutory Rule Against Perpetuities FS 689.225 (Replaces the
common law rule)
A non-vested property interest in real or personal property is invalid unless:
When the interest is created, it is certain to vest or terminate no later than
21 years after the death of an individual then alive; OR
The interest either vests or terminates within 90 years after its creation. (90
year look back rule)
In determining whether a non-vested property interest or a power of
appointment is valid, the possibility that a child will be born to an individual
after the individuals death is disregarded.

Page 86 of 97

Winter 2014
Professor
Maurer
90 year look back ruleIf the interest became in existence BEFORE Jan 1, 1999,
instead of using the common law rule all you have to do is wait 90 years after the
interest started and then look back and see if it has vested.
Today, testator can elect which rule is applicable to his trust. If a settlor wants to
block non-judicial termination of trust by the beneficiaries or modifications in the
best interest for the beneficiaries, the settlor must conform the trust to either the
common law rule or the 90-year period.
With regards to testamentary trusts, because the settlor is dead when the interest
is created, the settlors surviving spouse and surviving children (if they are
beneficiaries) will all be considered measuring lives (lives in being).
RAP does not apply to a right of first refusal. (See, Old Port Cove Holdings)
F. It provides a 90 or 360-year alternate vesting period and allows for judicial reformation
of interests created before October 1 1988.
G. Perpetuities Savings Clause: Savings clauses provide for the trust to terminate and for
the remainder trust property to be distributed to then existing beneficiaries within the
perpetuities period. These clauses tie the length of the trust to particular lives in being at
the time the interest is created plus 21 years.
An interest in a revocable trust for purposes of the rule is deemed created when
the trust becomes irrevocable (usually at settlors death).
i. Accordingly, a perpetuity saving clause that uses lives in being in a
revocable trust must use live in being at death of the settlor.
ii. In an irrevocable trust, must use lives in being when the trust was executed.
iii. A testamentary trust must use lives in being at death of the testator/settlor.

Chapter 29: Constructive and Resulting Trusts

I.

Constructive Trusts: A legally imposed equitable remedy that strips the owner of equitable
ownership and leaves him with bare legal title. (Doesnt exist until rendered by a court)
Requirements:
(1) Confidential/fiduciary relationship between the parties, (or Fraud, duress or other
wrong)
(2) An implied or expressed promise made to P,
(3) Detrimental reliance (transfer of assets or actions were based on Ds
representation); and
(4) Unjust enrichment.
Ex: The parties to a trust make an oral trust of land, which cannot be enforced as an
express trust for violating the statute of frauds; a court can impose on the grantee a
constructive trust to operate to the benefit of the beneficiary in the intended oral trust.
FS 689.05
Some circumstances where Constructive Trust may be imposed:
If you violate SOF and trust is invalid, you no longer have a private express trust,
however, all is not lost. A beneficiary can ask the court to impose a constructive
trust Judicial remedy
Under duty to convey property to another person.
Ex: An oral trust of land cannot be enforced as express trust b/c it violated the
reqs of SOF (FS 689.05), intended beneficiary of the oral trust could ask a court
to impose a constructive trust on prop.
Wodonos v. Wodonos: Case where Father-in-law made a wedding gift to daughter and
her husband but put the property under daughters sole name. Husband asked the court
to impose a constructive trust but the court held that the voluntary conveyance of the
Page 87 of 97

Winter 2014
Professor
Maurer
absolute title to real property vested ownership in the wife, free of any parol declaration
of trust.
Williams v. Grogan: Case of Mother who obtained wealth from her belated husband. A
share was left to their son. Annie asked son to deed over all assets so that she can care
for his interests and upon her death he would receive it back. She died and property went
to all of her beneficiaries under her will. The court held that when a person acquires title
to property through the influence of a confidential relationship, or obtains an advantage
that he should not be permitted to retain, a court of equity will prevent the abuse of the
confidence and unjustly enriched at the expense of another by granting proper relief.
Constructive trust was granted for benefit of son.
Mayer v. Cianciolo: Case of son and mother who had everything named as TC. Mom
wanted to sell a property and son conveyed all his interest to her for convenience
purposes. She died testate, without the sons knowledge, and he was jipped out of his
property. The court held that given the close relationship they had, where there is a
confidential relationship, a transaction induced by the relation, and a breach of the
confidence reposed, a constructive trust may arise even in the absence of fraud.
Allen v. Dalk: Decedent signed so many copies of her will that she mistakenly failed to
sign the original. The beneficiary argued that a constructive trust should be imposed for
the beneficiaries of the will. The court held that a constructive trust cannot be
established where a will is rendered invalid (i.e. lack of formalities) because the trust
would then only serve to validate an invalid will.
Holmes v. Holmes: Case where final judgment for DOM ordered the decedent to
maintain life insurance policy for the benefit of his daughter. Thereafter, Joseph changed
the name of the beneficiary to his sister. He died and the daughter petitioned the court to
impose a constructive trust on the life insurance proceeds based on the FJ. The court held
that equity requires imposition of a constructive trust in this situation, especially in light
of the special duty owed by Joseph to Christy.
City National Bank of Miami v. General Coffee Corp.: Although a constructive trust
could only be imposed by a competent court, upon imposition, a constructive trust relates
back to the moment the person committed the wrongdoingwhen the facts giving rise to
it occurred.
Since constructive trusts are equitable remedies, the court may consider the
relative positions of the parties, financial condition, and other relevant factors
before reaching a just and equitable resolution (no legal remedy is available, and
clean hands required.)
II.

Resulting Trusts: A reversionary, equitable interest implied by law in property that is held by
a transferee, in whole or part, as trustee for the transferor or the transferors successors in
interest. (All you need to prove is that you transferred assets to someone that is improperly
keeping them upon request of its return.)
There is a legally inferred intent that if the settlor had contemplated these results, she
would have intended the property to revert.
A resulting trust arises when:
o An express trust fails (or makes an incomplete disposition).
o Purchase of property a person (principal) advances money for purchase of
property and gives money to someone else (agent) to buy it for him. The agent
cant/wont convey the property and court declares him trustee and principal the
beneficiary. Land is then transferred to principal.
The statute of frauds does NOT apply to resulting trusts. The statute of limitations does
NOT operate against a resulting trust until the trustee has disclaimed the trust and
begins to hold the beneficial interest adversely. (See, Key v. Trattman, case of guy that
entered into a purchase of property with another guy to help him obtain his US
Page 88 of 97

Winter 2014
Professor
Maurer
citizenship. They orally agreed that the guy would turn over the property to him on
demand. He never did.)
Ex: A public figure may want to purchase real property without the purchase being of
public record. If the public figure does not sing a written trust agreement that complies
with FS 689.05, the parties have created a purchase money resulting trust between
them. Court action would be needed if the purchaser dies or repudiates the agreement.
Ex: When settlor transferred property to trustee for the benefit of another without
executing a trust in writing, thus failing to comply with statute of frauds.
Ex: What if the public figure gives the money to their son to buy blackacre. Then son
repudiates. We have a problem because they have to overcome the presumption that the
money was gifted because they are related.

Chapter 28: Fiduciary Powers, Duties and Liabilities

I. Powers
A trustee derives powers from four (4) sources:
Express provisions of the trust instrument delineating the trustees powers;
State statutes granting trustees certain powers;
Powers recognized by common law (inherent or implied powers); and
Authorization from a court.
However, those powers are limited by their duties. A trustee must not exercise a power if
doing so would cause the trustee to violate one or more of the trustees duties. A trustee
may be liable to the trust beneficiaries if the trustee violates one or more of the trustees
duties.
A trustee can exercise powers with or without court authorization. Those without
court authorization include: FS 736.0815
Power given by the terms of the trust;
Power over the trust property that an unmarried competent owner has over
individually owned property;
Powers over proper investment, management, and distribution of trust property.
Any other powers conferred by the FPC.
***All exercise of power subject to fiduciary duties prescribed by this code***
A fiduciary is a person (individual or institution) charged with the responsibility and duty
of acting on behalf of someone else, entrusted with anothers property. Held to a very
high standard of care.
FS 736.0816provides a list of specific powers of trustee. (p.166 of supplement)
FS 736.0816(25) allows the trustee to exercise powers, upon the termination of the
trust that are appropriate to wind up the administration of the trust.
o A trustee has powers to prosecute actions, claims, or proceedings for the
protection of trust assets and of the trustee in the performance of his or her duties
until final distribution of the trust assets. After a trust terminated, a winding up
period is usually necessary. (See, McMullin v. Beaver)
Questions to ask:
o Does the law prohibit the fiduciary from doing what they are doing?
o Will their exercise of that power or right violate another duty they have?
PR v. Trustee:
o PR is dealing with an estate that should be collected, spent and distributed versus
a trust will typically last for a much longer period of time.

Page 89 of 97

Winter 2014
Professor
Maurer
o PRs must make sure that the decedents creditors get proper notice and
opportunity to present any claims that they have that decedent owed them money.
However, a trustee doesnt have that obligation.
o A PRs fiduciary duty is the same as that owed by a trustee of an expressed trust.
o A PRs duties are discharged/terminate when the court enters an order of
discharge.
o They cant just quit at whim. The court has to give them permission to stop and
require them to turn over the assets of the estate to the successive Trustee/PR.
o PR must post a bond. Except where will says no and court agrees. However, FS
736.702 provides that the trustee need not post a bond unless required by trust or
court. Financial institutions typically dont have to post bonds because they carry
required insurance due to the nature of their practice already.
o There is another rule that apply only to PRs If you are qualified and you get
appointed, and then you are disqualified, you must inform the court. It does not say
if the judge has to remove you. The requirements of being resident of Florida, nonfelon, etc. are not required for trustees. The settlor can name whoever he wants as
trustee.
FS 733.613 governs a PRs right to sell real property.
FS 733.609(1) provides that a PRs fiduciary duty is the same as that of trustee of an
express trust and a PR is liable to interested persons for damages or loss resulting from
the breach of this duty.
FS 733.602(1) codifies the PRs general duty to settle and distribute the estate of the
decedent in accordance with the terms of the will and this code as expeditiously and
efficiently as is consistent with the best interests of the estate.
A PR can be removed for several reasons, good and bad. When is removed by
court, the duties end. Trustees can be removed by the beneficiaries for cause, or
for no cause if the instruments provides for it without need for court order.
If you are a qualified, and are appointed, and then become disqualified, you have
an affirmative obligation to tell the court. (Although the court is not obligated to
discharge youit depends on the facts)
A trustee may resign upon 30-day-notice to the qualified beneficiaries, the settlor
(if alive), and all co-trustees, or with the approval of the court (F.S. 736.0705).
II. Duties
(1)
Duty to Administer Trust in Good Faith: The trustee has a duty to administer
the trust in good faith and in accordance w/ trust terms/purposes and best interests of
the beneficiaries. This is the most essential duty of a trustee (FS 736.0801).
Mandatory provision that CANNOT be waived.
Good faith requires trustee to act like a prudent person would (not like we would
act in our normal life)more conservative.
Similarly, any term in a will relieving a PR from liability from breach of fiduciary
duty is unenforceable.
Anton v. Anton: 2 brothers that were co-trustees and one brother was stealing
funds but his brother was giving him signed blank checks. A trustee has to be just
as diligent as the other co-trustees. You cant just rely on the co-trustees to do
everything. The court held that both were liable even though only one was
responsible for the embezzlement. A trustee is under a duty to administer the
trust diligently for the benefit of the beneficiary. (Anton was ruled under the old
standard now the standard is good faith.)
(2)
Duty of Loyalty: The duty of loyalty requires the trustee to administer the trust
SOLELY in the interests of beneficiaries. FS 736.0802(1)
Page 90 of 97

Winter 2014
Professor
Maurer
This duty PROHIBITS the trustee from:
o Transacting in his individual capacity with the trust (self-dealing);
o Ex: personally purchasing assets from the trust, even if he pays fair
market value.
o Ex: T has some stocks in Microsoft, he sells it to the trust at fair
market value. A year later the stocks lower their value significantly.
The beneficiaries can void the investment, even a year later, and
trustee may be forced to rescind the transaction for being
impermissible.
o See, Keye v. Gautier, Keye was trustee & stocks werent doing well
so he sold stocks & re-invested money into a mortgage listed w/ his
name but he never made any mention of the trust as mortgagee (so
they had no security). There wasnt proof of complete lossbut he
had entered into an agreement that would benefit him (self-dealing).
Court held that he was protecting his own interest in getting a loan
for himself. It was ruled to be outright VOID. Even if he repaid the
loan with a huge interest or the investment was a good deal for the
trust, if done without consent or disclosure then beneficiaries have an
action against trustee for self-dealing.
o Transacting (either directly or indirectly) where trustees personal interests
are substantially affected (conflict of interests).
o If the breach results from this less direct conflict, a trustee may be
able to uphold the transaction by proving its fairness. However, the
trustee can still be liable for mismanagement of the trust.
o The trustees purchase or lease of trust property for her own account;
o Sale of trust property to a third person, with an understanding that this
person will later sell it to the trustee;
o Sale of the trust property to a corporation in which the trustee is a
substantial owner or serves in managing capacity;
o Sale of the trustees individually owned property to the trust;
o Purchase by a corporate trustee of its own stock as an investment of the
trust; and
o Appropriation of a trust opportunity.
A lawyer can hire himself as counsel for the trust and charge a fair value.
Under CL any such transaction (breach of duty of loyalty) entered into for the
trustees own benefit was VOID. Today it is VOIDABLE by the beneficiaries.
(Same for PRs) FS 736.0802(2)
If the beneficiaries consented, it is not voidable. (So long as full disclosure is
given)
If the beneficiaries snooze they losethey must complain within a
reasonable time period.
If its a revocable trusta trustee can also enter into self-dealing if the
trustee has obtained the settlors consent.
Beneficiaries of a trust have all the right to accounting from the trustee. (See,
Wickman v. McGraw)
A court shall not determine that a trustee abused its discretion merely because the
court would have exercised the discretion in a different manner or would not have
exercised the discretion.
Ex: ABC bank is serving as trustee; they find out that one of their bank officers has
a property they have been looking to purchase. Can they purchase that property
Page 91 of 97

Winter 2014
Maurer

Professor
for the trust of one of their clients? No. That is a form as self-dealing and the same
rules apply to companies as individuals.
Ex: Fifth Nat Bank is Trustee. Fifth Nat Bank stock is publicly traded on stock
exchange. Is it permissible for them to go through a broker and purchase stock for
a trust in their own company. Is there self-dealing? No. But there is a conflict of
interest.
Ex: The bank opens a trust checking acct at its own bank and puts trust cash into
their own bank. Is that permissible? Yes. Under FS 736.0802(5)(a)
Ex: Mr. Jones owns Microsoft stock personally. He is trustee to Mr. Ss trust. Mr.
Jones sells these stocks to trust at fair market value. A year later, the stock is only
worth $9500. What rights to the beneficiaries have if they find this out? They can
set aside the sale (rescind the K between the trustee and trust bc self dealing).
Have the transaction be void. Trustee would be required to take the stock back,
give them the money he took and any moneys lost because of failure to invest
elsewhere.
Ex: Mr. Jones sold another stock to the trust for $5k. Value the same. Then a year
later the stocks went up to $15k. Does beneficiary have any rights when he finds
out? They can choose not to rescind the transaction but rescind the Microsoft stop
in the prior example. The beneficiary can select which transaction to rescind.

(3)
Duty of Impartiality: A trustee must administer a trust impartially such that the
administration is equitable to all trust beneficiaries. FS 736.0803
This duty is applicable to all duties of the trustee, including:
i. The making or retention of investments;
ii. The management of real property or tangible personal property.
iii. The allocation of receipts and expenditures between principal and income
accounts;
iv. In decisions concerning discretionary distributions to one or more
beneficiaries; and
v. In controversies among beneficiaries concerning the rights and beneficial
interests.
Due to this duty, a trustee cannot ignore the interests of some beneficiaries, or
neglect on them.
However, preferences or priorities expressly or impliedly required by the trust
instrument are permissible.
(4)
Duty to Administer Trust Prudently: A trustee shall administer the trust as a
prudent person would, by considering the purposes, terms, distribution requirements,
and other circumstances of the trust (Same for PRs). FS 736.0804
To meet this standard, the trustee must exercise reasonable care, skill, and caution
in light of the circumstances.
A trustee is bound to the standard of conduct of a prudent man in protecting the
assets of a trust, and making them productive, regardless of the settlors intent to
hold him unaccountable for honest errors.
This duty also requires the trustee to act with prudence when delegating authority.
Trustee should try to diversify the investments when is prudent to do so.
(5)
Duty to Incur Only Reasonable Expenses: The trustee shall ONLY incur
expenses that are reasonable in relation to the trust property, the purpose of the trust,
and the skills of the trustee. FS 736.0805

Page 92 of 97

Winter 2014
Professor
Maurer
Even if you hire someone, you have to make sure you are paying a reasonable fee
for his services. Nature of trust property would also be a factor to determine the
reasonableness of the expenses.
Consider the purposes of the trust (i.e. support trustswouldnt be reasonable to
incur an expense that is not reasonable to the purpose of the trust)
(6)
Duty to Use Special Skills: If the trustee has special skills, or was selected on
the basis of representations of special skills or expertise, the trustee is under a duty to
use those skills (i.e. accountant, attorney) (Same for PRs). FS 736.0806
(7)
Duty to Prudently Exercise Power to Delegate: A trustee may delegate duties
and powers that a prudent trustee of comparable skills could properly delegate under the
circumstances. This requires the trustee to exercise reasonable care, skill, and caution in
selecting an agent, establishing the scope and terms of the delegation. FS 736.0807
An agent performing a delegated function owes a duty to the trust to exercise
reasonable care.
Under common law the trustee was generally NOT permitted to delegate (except
ministerial actswriting checks). But exercise of discretion was job of trustee.
Now, the statute does allow the trustee to delegate but with limitson what and
how to delegate. Once a trustee permissibly delegates there are limitations on how
much they are still liable for the behavior of the 3rd party.
Duties to make prudent investments can be delegated (i.e. Trustee is golf buddy
that doesnt know about investing. Is urged to seek expert on matter) But in
making the delegation he has to exercise reasonable care and skill in selecting the
person whom the duty will be delegated to. (Investigate their backgroundbe
thorough)
i. Improper delegation = Trustee liable
ii. Proper/Diligent delegation = Trustee may be relieved of liability.
iii. If Trustee is diligent he is generally not liable for 3rd party actions.
Have to be prudent in :
What powers to delegate;
Who to delegate to; AND
Have to supervise delegation.
Task of delegation cannot be delegated.
(8)
Duty to Control and Protect Trust Property: A trustee shall take reasonable
steps to take control of and protect the trust property (F.S. 736.0809).
If real property is part of the res, the trustee has power to make repairs that are
necessary. FS 736.0816(9)
Trustee has power to obtain insurance. FS 736.0816(12)
Trustee has duty to enforce or defend claims. FS 736.0811
Gives trustee duty to compel delivery of trust property being held by any previous
trustee. FS 736.0812
Ex: Trust owns valuable jewelry, should not leave it on his desk but rather put it in
safe and maybe even insure it.
Flagship Bank of Orlando v. Reinman, Harrell, Silberhorn, Moule &
Graham, P.A., where banks were figting for declaratory judgment over a property.
During process they failed to pay the property taxes and property was ultimately
lost because of that. Court held that because in their complaint and pleadings the
receivers claimed to own the properties, although they had not received an order
determining it theirs, they had a duty to upkeep and pay the taxes on the property.
Page 93 of 97

Winter 2014
Maurer

Professor

(9)
Duty to Inform and Account: The trustee shall keep the qualified beneficiaries of
the trust reasonably informed of the trust and its administration (F.S. 736.0813).
A trustee of an irrevocable trust must give ANNUAL accounting to qualified
beneficiaries FS 736.0813(1)(d)
i. Florida doesnt permit a trustee to waive the right to accounting by the
beneficiaries. Beneficiaries can waive the need in writing (by ALL
beneficiaries) but must include a release of liability against trustee.
A trustee of a revocable trust must account only to the SETTLOR!
FS
736.0813(4)
Trustee has an affirmative duty to enforce claims of the trust.
Also, if a settlor designates a representative for the beneficiaries, the trustee must
provide accounting to this person.
The trustees obligation to account is an annual obligation, while the PR is
obligated to file a final accounting only, prior to discharge, and it can also be
waived by the interested parties.
Attorney client privilege applies in the relationship between trustee and trustee
attorney.
Beneficiaries are entitled to accounting and relevant info about assets, liabilities of
the trusts and administration of the trust (i.e. income earned, growth, loss,
payments)
Distribution on termination: Upon the occurrence of an event terminating or
partially terminating a trust, the trustee shall proceed expeditiously to distribute
the trust property to the persons entitled to the property, subject to the right of the
trustee to retain a reasonable reserve for the payment of debts, expenses, and
taxes. The provisions of this section are in addition to and are not in derogation of
the rights of a trustee under the common law with respect to final distribution of a
trust. FS 726.0817
Even when a trust does not require accounting, a court can always request
accounting because the trustees are always accountable to the court in the
control of their performance. Grant of absolute discretion in a trust instrument
does not relieve trustees from their duty to exercise good faith, their duty to be
judicious in his administration of the trust, and the duty to protect all the
beneficiaries. (See, Mesler v. Holly)
Beneficiaries have 6mths after they receive notification by a trustee that an
accounting report has been filed to initiate any actions regarding the contents of
the report. FS 736.1008(2)
A person has to ACCEPT to be a trustee. A person designated as trustee who has
not accepted the trusteeship may decline the trusteeship. A designated trustee
who does not accept the trusteeship within a reasonable time after knowing of the
designation is deemed to have declined the trusteeship. FS 736.0701(2)
(10)
Duty to Not Commingle: A trustee shall keep trust property separate from the
trustees own property. This duty can be split into (1) the absolute duty to not commingle
trust assets with the trustees personal assets and (2) the duty not to commingle a trusts
assets of other trusts.
In, Wilkins v. Wilkins, the Supreme Court held that when a trustee commingles
trust funds with his own and dissipates a portion of the commingled fund, he will
be presumed to have dissipated his own funds first and the remainder of the
commingled fund to the extent of the lowest balance remaining at any time
subsequent to the commingling will be presumed to contain the trust fund and may
be impressed with the trust.
Page 94 of 97

Winter 2014
Professor
Maurer
FS 736.0810(4) allows an exception to the duty against commingling of trust
assets with the assets of other trusts. It allows a trustee to invest as a whole the
property of two or more separate trusts as long as the distinct interests are
clearly indicated.
A trustee shall keep clear, distinct, and accurate records of the administration of
the trust.

Notes:
o Co-trustees FS 736.0703:
Cotrustees who are unable to reach a unanimous decision may act by
majority decision.
If a vacancy occurs in a cotrusteeship, the remaining cotrustees or a
majority of the remaining cotrustees may act for the trust.
A cotrustee must participate in the performance of a trustees function
unless unavailable to perform because of absence, illness, disqualification
under other provision of law, or other temporary incapacity or the cotrustee
has properly delegated the performance of the function to another cotrustee.
A cotrustee may not delegate to another cotrustee the performance of a
function the settlor reasonably expected the cotrustees to perform jointly,
except that a cotrustee may delegate investment functions to a cotrustee. A
cotrustee may revoke a delegation previously made.
A cotrustee who does not join in an action of another cotrustee is not liable
for the action.
Each cotrustee shall exercise reasonable care to:
Prevent a cotrustee from committing a breach of trust.
Compel a cotrustee to redress a breach of trust.
A dissenting cotrustee who joins in an action at the direction of the majority
of the cotrustees and who notifies any cotrustee of the dissent at or before
the time of the action is not liable for the action.
o Removal of trustee FS 736.0706
The settlor, a cotrustee, or a beneficiary may request the court to remove
a trustee, or a trustee may be removed by the court on the courts own
initiative.
The court may remove a trustee if:
The trustee has committed a serious breach of trust;
The lack of cooperation among cotrustees substantially impairs the
administration of the trust;
Due to the unfitness, unwillingness, or persistent failure of the trustee
to administer the trust effectively, the court determines that removal
of the trustee best serves the interests of the beneficiaries; or
There has been a substantial change of circumstances or removal is
requested by all of the qualified beneficiaries, the court finds that
removal of the trustee best serves the interests of all of the
beneficiaries and is not inconsistent with a material purpose of the
trust, and a suitable cotrustee or successor trustee is available.

III. LIABILITIES
A. Liabilities to Beneficiaries (Internal Liability): A trustee may be liable to the trust
beneficiaries for violating 1 or more of the duties described above, whether intentional or
not. (in tort or contract)
Page 95 of 97

Winter 2014
Professor
Maurer
Remedies that a court may impose to redress a breach of duties varies (list not
exhaustive): FS 736.1001(2)
Enjoining the trustee from committing further breaches
Ordering the trustee to do an accounting
Removing the trustee
Suspension of the trustee
Compelling the trustee to pay money ore restore property; OR
Any appropriate relief the court deems necessary (which may include
damages)
Damages: Beneficiary has right to determine value of damages.
You can
potentially get the property back, or the profit that is made (If there was selfdealing). FS 736.1002
Not every unfortunate outcome involves a violation. For example, a trustee is not
automatically liable for an investment downturn. FS 736.1003 provides that,
absent a breach, a trustee cannot be held liable for a loss or depreciation in the
value of trust property or for not having made a profit.
Exculpatory clauses in trusts. FS 736.1011: A term of a trust relieving a
trustee of liability for breach of trust is unenforceable to the extent that the term:
a. Relieves the trustee of liability for breach of trust committed in bad faith or
with reckless indifference to the purposes of the trust or the interests of the
beneficiaries; or
b. Was inserted into the trust instrument as the result of an abuse by the
trustee of a fiduciary or confidential relationship with the settlor.
The effect of this term is mandatory.
The same happens to an exculpatory term in a will to protect a PR.
B. Liabilities of a Successor Trustee: FS 736.08125
Generally, a successor trustee will NOT be personally liable to qualified
beneficiaries, AND will not be required to institute proceedings (sue a
prior trustee) under certain circumstances:
If the prior trustee was the settlor of a revocable trust (if it was a selfdeclared revocable trust)
If the beneficiaries had waived accounting, or didnt bring suit soon enough.
If a super majority of the beneficiaries can release successor trustee.
(Supermajority usually =2/3 of qualified beneficiaries)
If the beneficiaries do not request in a reasonable time to sue the prior
trustee.
C. Liabilities to Third Parties (External Liability): Trustee may also be personally liable
to persons who are not beneficiaries and to whom he owes no fiduciary responsibilities.
FS 736.1013
A trustee is not personally liable on a contract properly enters into in the trustees
fiduciary capacity in the course of administering the trust if the trustee in the
contract disclosed the fiduciary capacity.
A trustee is personally liable for torts committed in the course of administering a
trust or for obligations arising from ownership or control of trust property only if
the trustee is personally at fault. But not liable for torts where trustee was not
personally at fault. (i.e. office building is res of trust, someone walks in & slips &
falls- trustee not personally liable)
In common law, trustee was also liable for the acts of his agent based on the
doctrine of respondeat superior.
Page 96 of 97

Winter 2014
Professor
Maurer
Protection of person dealing with trustee. FS 736.1016
A person other than a beneficiary who in good faith assists a trustee or who
in good faith and for value deals with a trustee, without knowledge that the
trustee is exceeding or improperly exercising the trustees powers, is
protected from liability as if the trustee properly exercised the power.
A person other than a beneficiary who in good faith deals with a trustee is
not required to inquire into the extent of the trustees powers or the
propriety of their exercise.
A person who in good faith delivers assets to a trustee need not ensure their
proper application.
A person other than a beneficiary who in good faith assists a former trustee
or who in good faith and for value deals with a former trustee, without
knowledge that the trusteeship has terminated, is protected from liability as
if the former trustee were still a trustee.
Comparable protective provisions of other laws relating to commercial
transactions or transfer of securities by fiduciaries prevail over the
protection provided by this section.

Page 97 of 97