WILLS FLORIDA

I. Intestate Succession A. Definitions 1. Lineal vs. Collateral Heirs a. Lineal Ascendants parents, grandparents, great-grandparents, etc.; b. Lineal Descendants children, grandchildren, great-grandchildren, etc.; c. Collateral Heirs stemmed not from one another but from common ancestor; 2. Per Capita vs. Per Stirpes a. Per Stirpes descendants of deceased person take by representation of share that deceased person would have taken had he survived to be an heir; b. Per Capita with Representation stirpital shares determined at first level at which there are living takers; c. Strict Per Stirpes [Fla.] stirpital shares determined at first generational level, whether or not any living takers at that level; B. Intestate Share of Surviving Spouse - surviving spouse of intestate decedent takes: (1) if decedent survived by spouse and descendants, all of whom are descendants of surviving spouse surviving spouse takes first $60K plus one-half of remaining estate; descendants take one-half of estate remaining after first $60K; (2) if decedent survived by spouse and descendants, some of whom are not descendants of surviving spouse surviving spouse takes one-half of estate; descendants take one-half of estate; (3) if decedent is survived by spouse and no surviving descendants surviving spouse takes all of estate; (4) if descendent is survived by no spouse and surviving descendants descendants take all of estate; 1. Effect of Divorce or Legal Separation on Right to Inherit right of spouse to inherit from decedent is conditioned on existence of marriage at time of death; divorce severs, while legal separation does not; C. Intestate Share of Other Heirs portion of estate not going to surviving spouse distributed to other heirs in following order: (1) descendents, per stirpes; (2) parents or surviving parent; (3) brothers and sisters and descendants, per stirpes; (4) one-half to paternal grandparents, one-half to maternal grandparents, and their descendants, per-stirpes, but both halves to one side if no takers on other side; (5) kindred of last deceased spouse, as if she had survived decedent and then died; (6) escheat to state; D. Special Cases 1. Adopted Children treated same as natural children of adopting parents for intestate succession; - no inheritance between adopted children and natural parents in either direction, except where adopting parent marries natural parent or child adopted by close relative; 2. Stepchildren and Foster Children no inheritance rights unless adopted by stepparent or foster parent; - doctrine of adoption by estoppel = applies when legal custody of child gained under unfulfilled agreement to adopt; 3. Posthumous Children heirs conceived before death of decedent but born after inherit intestate property as if they had been born in decedents lifetime; [Fla.] 4. Nonmarital Children children born out of wedlock are heirs of mother but not father, unless (1) he marries mother, (2) is adjudicated father before or after death, or (3) acknowledges paternity in writing; 5. Half Bloods brothers and sisters who have only one common parent; take half as much as whole bloods except where all collateral kin are half-bloods; [Fla.] II. Subsidiary Problems Common to Intestacy and Wills A. Simultaneous Death [Fla. Uniform Simultaneous Death Act] relevant when disposition of property by will, intestacy, joint tenancy, etc., depends on order of death and order cannot be determined; applies even if contrary provision in will or other instrument; - property of each decedent is disposed of as if he had survived the other; - joint tenancy with right of survivorship one-half of property passes through each estate; - note: 120-hour survival rule under UPC and revised-USDA not adopted by Florida; B. Disclaimers [Fla. Uniform Disclaimer of Property Interests Act] beneficiary may disclaim interest which results in interest passing as though disclaimant died immediately before interest was created; - valid disclaimer must (1) be in writing identified as disclaimer; (2) describe interest or power being disclaimed; (3) be signed, witnessed, and acknowledged; (4) be delivered; - disclaimer of real property must be recorded; - federal gift tax purposes qualified disclaimer made within nine months after decedents death or beneficiarys 21st birthday; - right to disclaim exists irrespective of spendthrift provision or similar restriction; 1. Surviving Joint Tenant or Tenant by Entirety may disclaim any interest passing by right of survivorship; disclaimer of interest in real property held as tenants by entirety does not cause disclaimed to be homestead property for purposes of descent and distribution; 2. Natural Guardian on Behalf of Minor may disclaim interest that (but for disclaimer) would have passed to minor as a result of another disclaimer, but only if disclaimed interest does not pass to or for benefit of natural guardian as a result of disclaimer; 3. Disclaimer Against Creditors disclaimer valid as against creditors of disclaimant because disclaimant never owned property; but cannot be used to defeat federal tax lien;

4. Barred right to disclaim interest may be barred if (1) beneficiary gives written waiver of right to disclaim; (2) beneficiary accepts property or any benefits; (3) beneficiary voluntarily assigns, transfers, or encumbers interest, or contracts to do so; (4) property sold pursuant to judicial process; (5) beneficiary is insolvent; C. Wrongful Conduct of Heir or Beneficiary 1. Bigamy intentional bigamous conduct bars spouse from inheriting others estate; 2. Slayer Statute person who wrongfully participates in killing of another may not receive benefits by will, intestacy, joint tenancy, etc., as a result of death; - property passes as if killer had predeceased victim; - joint tenancy and tenancy by entirety severed and treated as if tenancy in common, i.e. killer does not forfeit or receive fractional interest; - evidentiary standard of killing = greater weight of evidence, i.e. conviction not required; D. Advancement of Intestate Share 1. Advancement gift made to next of kin with intent that gift be applied against any share next of kin inherits from donors estate; - (CL) substantial lifetime gift to next of kin presumed to be advancement; - (Fla.) no gift considered advancement unless intention is declared in contemporaneous writing by decedent, or acknowledged in writing by heir; - if gift is advancement, then gifts value when given is added back into estate pot for purposes of calculating shares, and subtracted from recipients share; heir need not return amount of advancement in excess of value of intestate share; - (Fla.) advancement is not binding on predeceased heirs succesors unless writing or acknowledgment specifically provides; E. Satisfaction of Legacies 1. Testamentary Gift may be satisfied in whole or part by inter vivos transfer from testator to beneficiary after executing will, if testator intends transfer to have effect; - (Fla.) does not apply unless testator provides for satisfaction in will or contemporaneous writing, or devisee acknowledges in writing gift as one in satisfaction; - (Fla.) writing not requirement if testator gives specifically described property to beneficiary, i.e. results in satisfaction of legacy and ademption; III. Formal Requisites and Execution of Wills A. In General 1. Testamentary Capacity testator must be of sound mind and 18 years old or older or emancipated minor; 2. What Constitutes Will instrument (1) executed with certain formalities that is testamentary in character, (2) revocable during makers lifetime, and (3) operative at testators death; - codicil = supplement to will that modifies it; - beneficiary holds mere expectancy, not property interest, until testators death; 3. Testamentary Intent testator must have present intent that instrument operate as will; - promises to make will in future and ineffective deeds not given effect as wills; - parol evidence admissible to show instrument was not meant to have any effect, i.e. sham will; 4. Conditional Wills provides that it is to be operative only if stated condition is satifies, i.e. if I dont return from trip; - court may interpret condition as motive for creating will and might give will effect even if condition does not occur; 5. Holographic and Oral Wills a. Holographic Will handwritten by testator and signed, but not properly witnessed; - (Fla.) holographic and oral wills not recognized, even if validly executed in another state; 6. Military Testamentary Instruments (Fla.) properly executive military instrument is valid will; - instrument must be executed (1) by testator who is eligible for military legal assistance; (2) in presence of military legal assistance counsel; and (3) in presence of two disinterested attesting witnesses; B. Execution of Wills (Fla.) will must be signed at end by testator in presence of two witnesses, who must sign in testators presence and in presence of each other; 1. Testators Signature any mark affixed by testator with intent that it operate as his signature satisfies signature requirement; - may be made by another person at testators direction and in his presence; if proxy signs his own name as well, may be counted as an attesting witness; - order of signing is not critical as long as signing is done as part of single contemporaneous transaction; 2. Signature at the End Requirement (Fla.) will must be signed at the end in a time sense; NOT anywhere on the instrument; 3. Presence Requirement (min.) signing of parties within each others scope of vision; (maj.) conscious presence test; (Fla.) no case law on the issue; 4. Other Considerations - (Fla.) attorney may be liable to beneficiaries harmed by negligent preparation of will, even though not in privity of contract with them; - (Fla.) will does not need to be published, i.e. identified to witnesses as being will; - (Fla.) will, except holographic or oral will, executed by nonresident of Florida is valid in Florida if validly executed under law of place where testator was at time of execution;

C. Interested Witnesses - (CL) witness who was also beneficiary was not competent, and will could not be probated unless two other competent witnesses; - (Fla.) abolish interested witnesses rule; allow interested witnesses to take under will; D. Attestation Clause and Self-Proving Affidavit 1. Attestation Clause recites elements of due execution, and is prima facie evidence of those elements; - helpful in event witness forgets or misremembers facts surrounding execution; 2. Self-Proving Affidavit sworn to by testator and witnesses before notary public; - functions like deposition and eliminates need to produce witnesses in court years later; - signatures on affidavit may serve as signatures needed on will itself; IV. Revocation of Wills A. In General person with testamentary capacity may revoke will at any time prior to death; - may be revoked by operation of law, by subsequent instrument, by physical act; - even will that testator contractually agreed not to revoke may be revoked, but beneficiaries may then have breach of contract action against estate; B. Revocation by Operation of Law 1. Pretermitted Spouse (Fla.) pretermitted spouse, i.e. marriage following execution of will, takes intestate share, except where (1) waived in valid ante- or post-nuptial agreement; (2) will includes gift to spouse in contemplation of marriage, or (3) will discloses intention not to make provision for spouse; 2. Divorce or Annulment (Fla.) divorce or annulment following execution of will or revocable trust revokes all provisions in favor of divorced spouse; - will read as if former spouse predeceased testator; - trust construed as though former spouse died on date of annulment or on date judgment of divorce entered; - (Fla.) does not apply to insurance policies; 3. Pretermitted Children if testator fails to provide for child born or adopted after execution of will, child takes intestate share, except where (1) received an equivalent amount by advancement, (2) she was intentionally omitted, or (3) testator had other children and devised substantially all estate to childs other parent, provided other parent survives testator and is entitled to take under will; - (Fla.) parent still may disinherit child; - codicil = republication of will by codicil may change childs status as pretermitted, i.e. may not have same protection; C. Revocation by Written Instrument all or part of will may be revoked or altered by subsequent instrument executed with same formalities as will; - if subsequent testamentary instrument does not expressly revoke will, two are read together, with later instrument revoking earlier only to extent of inconsistent provisions; D. Revocation by Physical Act will or codicil may be revoked by burning, tearing, canceling, defacing, obliterating, or destroying with intent to revoke; - intent must be concurrent with act, i.e. accidental destruction does not revoke; - physical act may be performed by another if done at testators direction and in his presence; 1. Presumptions as to Revocation if will last seen in testators possession or control cannot be found after his death or is found in mutilated condition, rebuttable presumption arises that revoked; 2. No Partial Revocation by Physical Act (Fla.) executed will may not be partially revoked by physical act, i.e. striking out clause; stricken clause given effect as if nothing had been done to it; 3. Effect of Revocation on Other Testamentary Instruments a. Duplicates when will executed in duplicate, act of revocation done to either copy revokes will;\ b. Codicils revocation of will revokes all codicils to it; revocation of codicil to will does not revoke entire will; c. Revival (Fla.) no revival of revoked wills; once revoked by language in later will, cannot be revived unless reexecuted or republished; 4. Lost or Destroyed Wills if lost or destroyed, and presumption that testator revoked it is overcome, specific contents of will must be proved by testimony of two disinterested witnesses or by one disinterested witness and photocopy or carbon copy (but not draft) of will; E. Dependent Relative Revocation applies when testator revokes will under mistaken belief that another disposition of property would be effective, and but for mistaken belief, he would not have revoked will; - if other disposition fails, then revocation also fails and will remains in force; - applied only if comes closer to what testator tried but failed to do than would intestate distribution; V. Components of Will A. Integration physical attachment and internal coherence of pages raise presumption that they were present and intended to be a part of will when executed; proof of integration also provided by testimony and other extrinsic evidence; B. Codicil modifies previously executed will and must itself be executed with same formalities; - doctrine of republication by codicil = will treated as having been executed on date of last codicil, i.e. relevant where pretermitted child/spouse, to determine if child born or marriage occurred after will executed; C. Incorporation by Reference document may be incorporated by reference into will provided (1) in existence at time of execution; (2) sufficiently described in will; (3) will manifests intent to incorporate document;

- exception to existence requirement: (Fla.) reference in will to list specifying distribution of tangible personal property; list may be written or altered later; - extrinsic evidence admissible to identify writing whose terms are to be incorporated by reference; D. Acts of Independent Significance will may dispose of property by reference to acts and events, even though in future and unattested, if they have significance apart from effect on disposition made in will; - e.g. bequest to each person in my employ at time of my death, i.e. testator would not make employment decisions only for purposes of disposing property; - Uniform Testamentary Additions to Trusts Act (Fla.) permits testator to make bequest or devise to trustee (pour-over gift) notwithstanding fact that trust may be amended or revoked after execution of will; E. Nonprobate Assets will cannot make gift of nonprobate assets, including life insurance proceeds and death benefits, property passing by survivorship, property held in trust, i.e. pass according to particular agreement; VI. Contracts Related to Wills A. Joint and Mutual Wills 1. Joint Will = will of two or more people executed as single instrument; 2. Mutual Will = two separate instruments with reciprocal provisions; B. Contractual Wills parties agree on terms of wills and provide survivor will not revoke his will after others death; - survivor may revoke will anyway and have new will probated but beneficiaries of revoked contractual will may sue to have constructive trust imposed on estate assets in their favor; - (Fla.) contracts relating to wills must be in writing, and execution of joint will or mutual will does not create presumption of contract to make will or contract not to revoke; 1. Agreement Executed by Non-Florida Resident any agreement by nonresident is valid in Florida if valid under laws of state or country where agreement was executed; VII. Changes in Beneficiaries and Property After Wills Execution A. Lapsed Gifts and Anti-Lapse Statute gift lapses if beneficiary predeceases testator; operate to save gift if predeceasing beneficiary was in a specified degree of relationship to testator and left decedents who survived testator; - (Fla.) anti-lapse statute = predeceasing beneficiarys surviving descendants will take share per stirpes if (1) beneficiary is grandparent or descendant of grandparent; (2) beneficiary is dead when will is executed, fails to survive testator, or is required by will or by operation of law to be treated as having predeceased testator; - statute applies unless contrary provision appears in will; 1. Lapse in Residuary Gift (CL) no residue of a residue rule if will devised residuary estate to two or more beneficiaries and one of them predeceased testator (and anti-lapse statute did not apply), remaining residuary beneficiaries may not divide deceased beneficiarys share passed by intestacy; - (Fla.) remaining residuary beneficiaries may divide share in proportion to interests in remaining part of residue; but if antilapse statute applies, statute takes precedence and deceased beneficiarys descendants take; 2. Class Gifts if will makes gift to class, only class members who survive testator take share of gift, unless will provides otherwise or anti-lapse statutes requirements met; 3. Beneficiary Dead When Will Executed if will makes gift to beneficiary who was dead at time will executed, gift is void; - (Fla.) rules applying to lapsed gifts also apply to void gifts; B. Ademption ademption refers to failure of gift because it is no longer in testators estate at time of death; 1. Specific Devises and Bequests gift satisfied only by receipt of particular property described; - if specifically bequeathed property not in testators estate at death, bequest is adeemed and beneficiary takes nothing; - (Fla.) courts will admit evidence of testators intent, particularly in circumstances where absence of property did not result from own actions; 2. General or Demonstrative Legacies a. General Legacy gift of specific dollar amount; b. Demonstrative Legacy gives dollar amount but specifies particular asset as source of payment; - neither general legacy nor demonstrative legacy is adeemed by absence of cash or specific asset in estate; satisfied by selling other assets or making distribution in kind; - court construes gift of securities as general legacy unless testator specifically states my 200 shares of Acme stock; 3. Other Cases (Fla.) ademption doctrine does not apply to certain cases involving property disposed of by guardian or property that, at time of testators death, is no longer in estate but on which there is balance owed to testator; C. Stock Splits and Stock Dividends specific devisee of stock entitled to any additional shares of entity owned by testator as a result of action initiated by entity, i.e. merger, split, etc., or which were purchase under dividend reinvestment plan; VIII. Restrictions on Power of Testation A. Dower and Curtesy abolished and replaced by elective share; B. Surviving Spouses Elective Share elective share is 30% of decedents elective estate; in addition to spouses right to exempt property, family allowance, and homestead; 1. Property Subject to Election decedents probate estate and various nonprobate assets; a. Nonprobate assets include: - decedents interest in payable on death or survivorship accounts or securities, or property held in joint tenancy with right of survivorship or by the entirety; - revocable trusts;

- irrevocable trusts to extent that decedent retained right to income or principal; - net cash surrender value of decedents life insurance; - death benefits from pension; - property transferred within one year before death or in satisfaction of elective share; b. Nonprobate assets do not include: - irrevocable transfers before October 1, 1999, or before decedents marriage; - transfers made for adequate consideration or made with written consent of spouse; - proceeds of decedents life insurance policy in excess of net cash surrender value or maintained per court order; - decedents one-half of community property; - property in qualifying special needs trust; - property included in decedents gross estate for federal estate tax purposes solely because he possessed general power of appointment; - decedents homestead; 2. Procedure for Making Election must be filed on or before earlier date that is (1) six months after service of copy of notice of administration on surviving spouse or attorney-in-fact or guardian of property of surviving spouse; (2) two years after decedents death; - person filing petition may ask court for extension of time; if petition filed, time for making election is tolled; - election may be withdrawn on or before earlier of (1) date that is eight months after decedent death, or (2) date of court of order for contribution; 3. Person Entitled to Elect may be exercised by surviving spouse, her attorney, holder of durable family power of attorney, or, if incompetent, by guardian of property; - if surviving spouse dies without making election, rights die with her; - right to elective share is not lost if dies after filing notice of election but before court determines amount of elective share; 4. Satisfaction of Elective Share all interests that pass or have passed to spouse are first applied to satisfy elective share; - spouse cannot avoid rule by disclaiming or refusing to accept any interests; - balance of elective share is equitably apportioned among recipients of elective estate property, first from probate estate or revocable trusts, then from other property in elective estate; 5. Right of Election and Other Rights following may be waived by written agreement before or after marriage: (1) right of election, (2) right of surviving spouse as intestate successor or pretermitted spouse, (3) rights to homestead, (4) exempt personal property, (5) family allowance, (6) preference in appointment as personal representative in intestate estate; - consideration for agreement is not required; - if agreement is after marriage, each spouse must make fair disclosure of estate; - if agreement before marriage, disclosure is not required; 6. Effect of Elective Share on Other Instruments elective share statute does not affect: (1) any interest in irrevocable contract entered into for adequate consideration before October 1, 1999; (2) any interest in property held in revocable or irrevocable trust if (a) property was trust asset between October 1, 1999 and decedents death, (b) decedent was not married to surviving spouse when property was transferred to trust; and (c) property was nonmarital asset at decedents death; C. Homestead consists of one-half acre inside municipality or 160 acres outside municipality; 1. Tenancy by Entirety if homestead held in TBE, then passes by survivorship; 2. Some Other Form if homestead held in some other form, not subject to devise if owner is survived by spouse or minor child, except that it may be devised to spouse if no minor child; 3. Improperly Devised if improperly devised, descends as intestate property except that if decedent is survived by spouse and one or more descendants, spouse takes life estate with vested remainder to descendants in being at death, per stirpes; 4. Waiver if surviving spouse waives homestead rights and no minor child, property passes according to decedents will; 5. Homestead Exemption exemption from forced sale by creditors inures to surviving spouse or heirs of owner; 6. Residuary homestead property not specifically devised generally passes to residuary as undisposed of property; D. Family Allowance purpose of family allowance is to provide support during probate administration; 1. Allowance in addition to amount passing by will, intestacy, elective share, or homestead; - amount of allowance is up to $18K to surviving spouse and lineal heirs who were receiving or owed support by decedent; - spouse does not have to show need; - family allowance must be petitioned for; not automatic; E. Exempt Personal Property Set-Aside surviving spouse entitled to up to $10K of household furnishings plus decedents personal automobiles, in addition to amounts otherwise passing to her; 1. Exemption property is excluded from value of decedents estate before residuary, intestate, pretermitted, or elective shares determined; 2. Not Included property specifically bequeathed or property on which there is perfected security interest; 3. Petition exempt personal property must be petitioned for; not automatic; F. No Restrictions on Testamentary Gifts to Charity no restriction on testamentary gifts to charity, regardless of size of such gifts, and regardless of when testators will was executed; IX. Will Contests A. Introduction will contest challenges whether document offered for probate is valid will; - contestant may raise any matter tending to show that will is not valid and should be denied probate;

1. Partial or Full Failure will is void if its execution is procured by undue influence, fraud, duress, or mistake; - if only part of will was procured that way, then only that part is void; B. Time for Will Contest 1. Publication personal representative must promptly publish notice of administration in county where estate administered; 2. Service personal representative must personally serve copy of notice on decedents surviving spouse and all will beneficiaries and heirs known to personal representative; 3. Timely Filing of Objection interested person on whom notice is served must file any objection on or before date that is three months after date of service of notice of administration; if not file within that period, barred forever; 4. Filing During Appointment as Representative in alternative, party who petitions for appointment as personal representative may serve copies of petition and will on interested persons; interested person then must raise objections at initial hearing for appointment of personal representative; C. Testamentary Capacity must exist at time will executed, and need not continue to exist as of day of death; 1. Capacity testator must (1) be at least 18 years old or emancipated minor; (2) understand nature and extent of property, persons who are natural objects of bounty, and nature of disposition being made; - adjudicated insanity does not necessarily mean that testamentary capacity exists; - burden of introducing evidence that testator lacked mental capacity is on will contestant; 2. Insane Delusion form of incapacity in which testator spontaneously conceives as fact something that has no trust except in imagination; - conception must (1) be persistently adhered against all evidence and reason without evidence of any kind to support it; (2) have no foundation in reality; and (3) spring from diseased or morbid condition of mind; - differs from mere illogical belief, which may arise, albeit imperfectly and illogically, from a known premise; D. Undue Influence to establish, contestants must show that (1) influence was exerted; (2) effect of influence was to overpower mind and free will of testator; (3) product was will that would not have been executed but for influence; - influence presumed if will makes substantial gift to one in confidential relationship with testator who was active in procuring will; E. Fraud successful contest requires that testator was willfully deceived as to (1) character or content of instrument or (2) extrinsic facts that would induce will or particular disposition or (3) facts material to disposition; - if testator is fraudulently prevented from making will, some courts impose constructive trust against intestate beneficiaries in favor of those who would have taken had will been made; F. Mistake 1. Mistake in Execution of Will extrinsic evidence admissible to show that testator did not know that instrument he was signing was a will; - existence of testamentary intent becomes issue; - if testator mistakenly signs wrong will, i.e. H and W sign each others wills, some courts will deny relief but other courts will grant relief where nature of mistake is obvious; 2. Mistake in Inducement if mistake involves reasons testator made will in particular way, and was not fraudulently induced, court will not normally grant relief; - relief may be granted where mistaken inducement appears on face of will; 3. Mistake as to Contents of Will extrinsic evidence not admissible to show provision was omitted or incorrect; - plain meaning rule = evidence is not admissible to contradict plain, unambiguous language of will; 4. Mistake as to Revocation under compelling circumstances, constructive trust may be imposed when testator mistakenly believes he has effectively revoked will or codicil, i.e. destroying photocopy; 5. Ambiguity a. Latent Ambiguity arises if wills language is clear on face but results in misdescription as applied; b. Patent Ambiguity arises if uncertainty appears on face of will; - extrinsic evidence admissible to cure latent ambiguity because does not have effect of rewriting will; - extrinsic evidence (CL) not admissible to cure patent ambiguity; (M) admissible to cure patent ambiguity; G. No-Contest Clauses (Fla.) all provisions unenforceable in will that purport to penalize beneficiary for contesting will or instituting other proceedings related to estate; X. Probate and Estate Administration A. Probate Process 1. Probate proceeding in which instrument is judicially determined to be duly executed last will of decedent, or if no will, proceeding in which decedents heirs are judicially determined; - (Fla.) circuit courts have exclusive jurisdiction; venue is (a) decedents county of residence at time of death; (b) for nonresidents, in any county where decedent owned property; (c) if nonresident and did not own property in Florida, where debtor of decedent resides; - (Fla.) death person presumed to be dead if (a) absent from place of her last known domicile for five continuous years, and (b) absence is not satisfactorily explained after diligent search and inquiry; 2. Arbitration provision in will is enforceable that requires arbitration of disputes, other than disputes of validity of all or part of will, among beneficiaries and personal representative; presumed to require arbitration; B. Proof of Wills will may be proved by oath of one of witnesses; if no competent witness found, personal representation or another non-interested person in will may testify that he believes writing to be decedents will; - self proving will = if witnesses have previously signed and sworn to affidavit as to proper execution;

1. Lost or Destroyed Wills exact terms may be established and offered for probate by any interested person; - specific contents of will must be proved by testimony of two disinterested witnesses, or if correct copy provided, by one disinterested witness; C. Qualifications, Duties, Powers, and Liabilities of Personal Representatives 1. Personal Representative a. Testate Decedent order of preference for appointment as personal representative: (1) person nominated in will; (2) person selected by majority in interest of persons entitled to estate; and (3) devisee; - in absence of unforeseen circumstances that would have changed testators decision, and unless person is disqualified by statute, court must issue letters testamentary to person nominated in will; b. Intestate Decedent order of preference for appointment as personal representative: (1) surviving spouse; (2) person selected by majority in interest; (3) heir nearest in degree; 2. Qualifications must be (1) 18 or older; (2) have mental capacity; (3) not be a convicted felon; and (4) be Florida resident, unless related to decedent; - banks, savings and loans, and other trust companies also authorized to exercise fiduciary powers may serve; a. Non-residents only following qualified to serve: (a) decedents grandparent or descendant thereof; (b) decedents adopted child or adoptive parent; (c) decedents spouse or person related to spouse by lineal consanguinity; and (d) spouse of any of foregoing; b. Disqualification personal representative who knows or should know that she is no longer qualified to serve must promptly file and serve notice setting forth reasons for inability to serve; 3. Duties personal representative must secure and preserve estate, and keep estate assets separate from other property; - may take possession of protected homestead property to preserve, insure, and protect if not occupied by heir or devisee; - if expends funds or incurs obligations in doing so, personal representative may place lien on property and its revenues to secure repayment; - standard of care same as that for trustee; a. Duty to File Inventory personal representative must file inventory of property of estate; - amended or supplemental inventory must be filed if (1) learns of any property not included in original inventory, or (2) estimated value or description listed in original inventory is erroneous or misleading; - safe deposit box inventory must be filed within 10 days after box is opened; 4. Powers (Fla.) broad grant of authority to manage estate property without court approval whatever fee simple owner could do; - exception requiring court approval: (1) operation of decedents unincorporated business beyond four months; (2) selling, mortgaging, or leasing real property (unless will grants power); (3) transactions involving conflict of interest; 5. Powers of Joint Personal Representatives if two or more people appointed as representatives, all must concur as to any act if will was executed before October 1, 1987; - if executed on or after October 1, 1987, majority must concur; - concurrence not required if (1) will provides otherwise; (2) emergency action is required; or (3) one has been delegated to act for others; - dissenting joint personal representative may avoid personal liability for act if she puts dissent in writing; 6. Liability personal representative is not individually liable on contracts, except attorneys fees, unless fails to reveal capacity as personal representative or contract provides otherwise; - torts = liable if personally at fault; - estate = may be liable to persons interested in estate if exercises her power improperly or in bad faith; - professional advice = may prudently rely on advice without incurring liability; 7. Exculpation exculpatory clauses void if they (1) relieve personal representative of liability for breach of duty committed in bad faith or with reckless indifference; or (2) appear in will as a result of personal representatives abuse of confidential relationship with testator (unless he can show that clause is fair and was adequately communicated to testator or testators attorney); 8. Reasonable Compensation personal representative is entitled to commission, i.e. percentage of value of probate estate, payable out of estate assets; - court may allow additional compensation for extraordinary services; a. Will Provision Fixing Compensation provision fixing personal representatives compensation not binding unless provision was made pursuant to contract; b. Two or More Personal Representatives if estate valued at $100K or more and there are two or more personal representatives, each entitled to full commission; - if more than two, compensation that two would have received is apportioned among them; - if estate is less than $100K and more than one personal representative, they must apportion one full commission among themselves; 9. Compensation of Attorney for Personal Representative attorneys for personal representative entitled to reasonable compensation as set out in statute; D. Creditors Claims 1. Order of Payment assets are paid to creditors of insolvent estates per following priority: (1) class 1 expenses of administration; (2) class 2 funeral expenses up to $6K; (3) class 3 debts and taxes having precedence under federal law

and Medcaid claims; (4) class 4 expenses of last illness up to 60 days; (5) class 5 family allowance; (6) class 6 arrearage from court-ordered child support; (7) class 7 decedents business debts acquired after death, to extent of business debts; (8) class 8 other claims; 2. Time for Claims a. Publication personal representative must promptly publish notice to creditors, i.e. once a week for two consecutive weeks, in a newspaper published in county where estate is being administered; b. Service of Notice personal representative must make diligent search to determine names and addresses of decedents creditors who are reasonably ascertainable and personally serve copy of notice on these creditors within three months after first publication; c. Persons to Receive Notice personal representative must promptly serve copy of notice of administration on following: (1) decedents surviving spouse; (2) beneficiaries; (3) trustee of decedents revocable trust, if any, if trustee is also personal representative of estate; (4) all qualified beneficiaries of decedents revocable trust, if any; (5) persons who may be entitled to exempt property; d. Failure to Publish or Serve Notice if personal representative in good faith fails to publish or serve notice, personal representative is not liable; any liability is on estate; e. Filing Period creditor served with copy of notice must file claim with court before later of (1) three months after date of first publication of notice; (2) 30 days after date of service of notice; - unknown or unascertainable creditors must file claims within three months after date of first publication of notice; - claims arising after death not subject to timely filing requirement; f. Failure to File does not affect lien rights or proceedings to establish liability of decedent for which he is protected by casualty insurance; - filing period extended only in cases of fraud, estoppel, or insufficient notice; - personal representative may file timely objection to claim; then claimant must timely file action on claim; - creditors claims must be filed within two years after decedents death if notice of administration has not been published; g. Caveats creditor or other person apprehensive that estate will be administered or that will may be admitted to probate without knowledge may file caveat with court containing statement of caveators interest in estate; - after filing, clerk must notify caveator of date of issuance of letters of administration, and names and addresses of personal representatives; - after filing by interested person other than creditor, court may not admit will to probate, or appoint personal representative, without service of formal notice on caveator; 3. Exoneration of Liens (Fla.) beneficiary of specifically devised property may not have outstanding liens against property paid out of residuary estate unless will specifically directs it; 4. Abatement of Legacies if estate assets insufficient to pay all testators debts and expenses plus other items such as spouses elective share, then legacies and devises abate in following order unless otherwise provided (1) property passing by intestacy; (2) residuary devices and bequests; (3) general legacies; (4) property not specifically or demonstratively devised; and (5) specific and demonstrative gifts; E. Apportionment of Death Taxes unless will provides otherwise, taxes attribuatable to testamentary estate are charge against residuary estate; - if residuary insufficient, balance is apportioned pro rata among other beneficiaries; - nonprobate assets, i.e. life insurance and survivorship estates, included in gross estate for federal death tax = taxes equitably apportioned in proportion value of interest subject to tax bears to value of all interests subject to tax; - marital and charitable deductions, and homestead exemption = exempt from apportionment for death taxes; F. Representation of Minors and Other Incompetents where controversy during administration may affect interests of minor or incompetent, persons interest may be represented by appointment of guardian of property, guardian of person, or guardian ad litem; - in estate administration, orders binding trustees or living persons in interest may by virtual representation serve to bind trust beneficiaries or unborn or unascertained persons; G. Special Forms of Administration 1. Simplified Forms of Administration (Fla.) no formal administration may be necessary if (1) estate consists only of personal property, value of which does not exceed sum of exempt property and death expenses, and (2) court gives permission after informal application; a. Summary Administration may apply if estate value is less than $75K or decedent has been dead for more than two years; b. Ancillary Administration necessary where nonresident dies leaving assets in Florida; - will and codicils will be admitted to probate if executed as required by Florida law; - ancillary personal representative must publish and serve notice to creditors unless claims are otherwise barred; - property located in Florida, subject to ancillary administration, is controlled by law of decedents domicile unless testator provides in will that testamentary disposition of property governed by Florida law; H. Closing Administration when personal representative has completed administration of estate, must provide accounting to court and any interested persons; - if no objection filed within 30 days, assets will be distributed, personal representative discharged, and estate closed; - once estate completely administered, administration may be reopened only upon discovery of additional estate property;

XI. Powers of Appointment A. Terminology 1. Power of Appointment authority created in person (donee) to designate, within limits prescribed by creator of power (donor), persons who will take certain property and manner in which they will take it; 2. Objects of Power those in whose favor power is exercisable; 3. Takers in Default of Appointment persons designated to take property if donee fails to effectively exercise his power; 4. General Power of Appointment power exercisable in favor of donee himself, his estate, his creditors, or creditors of his estate; 5. Special Power of Appointment power exercisable in favor of specified class of persons that does not include donee, his estate, his creditors, or creditors of his estate; 6. Presently Exercisable Power power exercisable by donee during his lifetime; 7. Testamentary Power power exercisable only by donees will; - uinless expressly limited to donees lifetime, presently exercisable power is also exercisable by donees will; B. General Powers of Appointment 1. Donors Agent donee acts as donors agent in appointing property; - when donee exercises power, appointee takes title directly from donor; - power of appointment is personal to donee, i.e. cannot delegate or assign power; - if donee dies without exercising power, power terminates; - appointative property is not subject to elective share statute; 2. Donees Creditors donees creditors may reach property subject to presently exercisable general power; may not reach property subject to postponed or testatmentary general power unless donee is also donor; 3. Failure to Exercise General Power if donee fails to exercise general power, and no gift in default, property passes to donors heirs or residuary legatees; C. Special Powers of Appointment 1. Exclusive vs. Nonexclusive Special Powers a. Exclusive Power special power is exclusive if may be exercised in favor of some objects of power to exclusion of others, i.e. donee may appoint to some objects and not others, or may appoint unequal shares; - special powers presumed to be exclusive unless donor expressly provides otherwise; b. Nonexclusive Power special power is nonexclusive if must be exercised in favor of all appointees; 2. Implied Gift in Default of Appointment if donee of special power fails to exercise it, and no gift in default of appointment, gift to objects of power implied; 3. Donees Creditors donees creditors cannot reach property subject to special power, even if donee of special power is also donor unless transfer was in fraud of donor-donees creditors; D. Exercise of Powers of Appointment 1. Instrument Exercising Power unless donor directs otherwise, power of appointment can be exercised by any instrument effective to transfer title to property; 2. Residuary Clause general residuary clause in will does not exercise testamentary power of appointment held by testator unless specific reference is made to power, or some other indication of intent to include property subject to power; 3. Exercise by Implication if donee purports to dispose of appointative property as if it were her own, of if disposition cannot be given meaning unless donee is treated as having exercised power, power will be deemed exercised by implication; 4. Scope of Power a. Trust (Maj.) donee may exercise power by creating trust for object of power rather than appointing property outright; (Min.) reject creation of trust; b. Grant of Broader Special Power (Maj.) donee may grant object of power broader special power than he has; (Min.) reject grant of broader power; E. Application of Rule Against Perpetuities 1. Presently Exercisable General Powers 2. Special and Testamentary Powers 3. Effect of Invalid Appointment F. Contracts to Appoint 1. Testamentary Powers donee of testamentary power cannot contract to make appointment; - would defeat intention of donor by transforming testamentary power into presently exercisable power; 2. Presently Exercisable Powers donee of presently exercisable power may contract to make appointment but cannot contract to confer benefit on nonobject of special power;