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Nonprobatable property
(definition)
property that may be xfered to another by instrument (other than a wil) or by operation of law
Types of nonprobatable property
  • Joint tenancies
  • Life Insurance
  • payable on death contract
  • Interest in trust
  • Homestead property (Florida
Probatable Property
Other property which must be transfered under the direction of the court. Usually includes property left  by will under the law of intestacy.
Formal v. ex Parte Probate
based on how large the estate is and whether disposition of estate may be contested
bequeths
personal property left in a will
devise
real property left in a will
Under Intestacy, real property of a person dying instestate _____ to ______
 descends to heirs
Under Intestacy, personal property of a dying person ______ to ________
distributes to next of kin
To Commence probate one must _________
File a petition with the court.
Person to oversee administration of probate
personal representitive or executor
Person representative must be representated by a __________
this person Must be represented by an atty unless the person is a atty licenced in FL
Creditor procedure under probate
ensures creditors are notified and have opportunity to assert claims  against the estate. May require actual notice . failure to file timely bars claim
This is important to provide in case of the death of both parents
Guardianship
What does a guardianship of person do?
Places minor in custody and care of guardian until age of majority
What does guardianship of property do?
Place property under management of guardian until child reached age of majority.
If not guardian appointed?
Must be ordered by the court.
Costs of probate...
  • Filing fees
  • atty fees
  • personal representative
  • appraiser fees
  • guardian ad litem fees
Ways to avoid probate..
  • transfer during lifetime
  • statutory exemptions (FL-property is >$1000 or only property is auto(still needs affdvt other form))
  • Homestead
  • still should have will in case property slips through the cracks and if you have minors
Role of Estate atty during Clients lifetime.
  • Estate
  • Document
  • Minors
  • Advance directives
  • Ensure Capacity
Heirs determined when?
determined at the time of death
Lineal heirs-
persons directly descending up (parents) or down (children and grandchildren)
Collateral heirs
persons derived from a common source (sisters, brother, uncles and aunts)
Strict per stirpes
(florida rule) per sterpes share is decided at 1st generational level
Modern per sterpes- not florida
any living 1st generational; use per capita if no living generational.
If spouse is legally separated, how does that affect the right to inherit an intestate share
legal separation does not divest
Intestate Share of Surviving spouse If all descendants of same marriage
surviving spouse takes first 60k plus ½ of remaining estate; other ½ passes to descendents per stirpes eg share of any deceased child will pass to grandchildren in equal shares.
Intestate Share of surviving spouse If some of decendants are only decedent’s decendants.
surviving spouse takes ½ of estate and the other ½ passes to the decedents per stirpes.
Intestate Share of surviving spouse If no descendents.
entire estate passes to surviving spouse
Intestate share If no surviving spouse
entire portion passes to decedents per stripes
Intestate share If no surviving spouse or decedents.
entire estate passes to parents or surviving parent.
Intestate share If no descendents or parents
entire estate passes to brothers and sister and and their descendants per stirpes
Intestate share If no decendants, parents or descendants of parents (bros and sisters), estate is divided into
2 shares; one goes to maternal kindred and the other goes to paternal kindred as follows
Intestate share if  no decendants, parents or descendants of parents (bros and sisters),grandparents alive
respective ½ share goes to each one in equal shares or one share if only one grandparent surviving
Intestate share if  no decendants, parents or descendants of parents (bros and sisters),grandparents predecease
respective ½ share goes to uncle/aunts and decendants of deceased uncles/aunts per stirpes
Intestate share if no decendants, parents or descendants of parents (bros and sisters),grandparents predecease and no descendents on either maternal or paternal side.
then entire share goes to the other side.
Intestate share if no decendants, parents or descendants of parents (bros and sisters),grandparents predecease and no decedents on either side on neither maternal or paternal side
to the kindred of the previously deceased spouse as if spouse had survived and inherited
Half blood and Whole bloods: generally as long as one parent in common, take as
Whole blood
Florida law, if taking by collateral kin (but not lineal kin) half bloods
take half as much as whole bloods unless all are half bloods then share entire amount
Posthumous children are______. They are treated as ______ _______ 
another name for heirs conceived before death. They are treated as natural children
adopted children are treated as
  • Natural children of adoptive parents but not a decendant of the natural parents or kindred of natural parents family 
  • In FL adoption after death of natural parent does not cut off inheritance from deceased parent's family
Do step/foster children generally have rights to inheritance from step/foster parents
No, they do not have right to inheritance UNLESS
person takes custody of a child based on an agreement to adopt and child performs agreement
Non Marital Child is decendant of father if...
*natural participates in marraige ceremony before birth (even if later voided) OR
*Paternity established before death OR
*Father acknowledges paternity in writing
Non Marital Child relationship to natural mother
this person is a decendant of the mother and one of natural kindred of all the members of the mother's family
What is an advancement?
a gift made to kin with the intent that the gift be applied against any share he/she may inherent from the estate
To be valid, what is required of an  advancement in Florida
a contemporaneous writing
How is does an advance effect the share of the beneficiary
It will be deducted from the share of that beneficiary.
How does an advance affect the advancee's heirs if advancee predeceases decedent?
This has no affect on advancee's heirs unless acknowledgement states otherwise
Simultaneous Death general rule
under this rule a beneficiary must survive decedent in order to inherit by clear and convincing evidence un FL law.
Bars to succesion
  • Homicide
  • Intentional bigamous conduct
Rights lost if a person unlawfully and intentionally killed or participates in the procuring of the death of the decedent.
  • benefits under will, law of intestacy or life insurance
  • other rights under probate code (homestead etc)
  • rights of suvivorship
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