Creating a comprehensive study guide or “attack sheet” for the Wills & Trusts section of the Florida Bar Exam involves summarizing the key points of law that are frequently tested. This guide is intended to serve as an overview and a quick reference during study sessions.
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**WILLS & TRUSTS ATTACK SHEET**
**I. WILLS**
*A. Validity and Execution of Wills*
1. **Age and Capacity**: Testator must be 18 years or older and of sound mind.
2. **Written Wills**: Must be in writing (typed or handwritten).
3. **Holographic Wills**: Not recognized in Florida.
4. **Nuncupative Wills**: Oral wills are not valid for real property and have limited validity for personal property.
5. **Witnesses**: Two disinterested witnesses must be present simultaneously to witness the testator signing or acknowledging the will.
6. **Self-Proved Wills**: A self-proving affidavit can streamline probate.
*B. Revocation and Alteration*
1. **Revocation by Physical Act**: Tearing, burning, canceling, defacing, or obliterating with intent to revoke.
2. **Revocation by Subsequent Instrument**: Express revocation or execution of a subsequent inconsistent will.
3. **Dependent Relative Revocation**: Allows a revoked will to be admitted to probate if revocation was predicated on a mistake of law or fact.
*C. Components and Types of Wills*
1. **Attestation Clause**: The clause where witnesses affirm the testator’s capacity and free will.
2. **Codicils**: Amendments to the will, which must follow the same formalities.
3. **Pour-Over Wills**: Transfers assets into a previously established trust.
*D. Interpretation*
1. **Lapses and Anti-Lapse**: If a beneficiary predeceases the testator, Florida’s anti-lapse statute may save the gift if the beneficiary was a close relative.
2. **Ademption**: Specific gifts that are no longer in the estate at the time of death are adeemed (fail).
3. **Abatement**: Reduction of gifts when the estate is insufficient to pay all claims and legacies.
*E. Intestacy*
1. **Partial Intestacy**: Occurs when the will does not dispose of all the decedent’s property.
2. **Intestate Succession**: Distribution scheme for those dying without a will—spouse and descendants typically take priority.
**II. TRUSTS**
*A. Creation and Validity*
1. **Trust Intent**: Clear intent to create a trust.
2. **Trustee**: Must have a trustee, who need not know they are named at the time of creation.
3. **Definite Beneficiary**: Must have ascertainable beneficiaries unless it’s a charitable trust.
4. **Property**: Must have specific trust property (res).
5. **Lawful Purpose**: The purpose of a trust must be legal and not against public policy.
*B. Types of Trusts*
1. **Testamentary Trusts**: Created by will and becomes effective upon death.
2. **Living (Inter Vivos) Trusts**: Created during the settlor’s lifetime.
3. **Revocable Trusts**: The settlor retains the right to amend or revoke the trust.
4. **Irrevocable Trusts**: The settlor does not retain the right to amend or revoke.
5. **Charitable Trusts**: Indefinite beneficiaries with a charitable purpose.
*C. Trust Administration*
1. **Duties of a Trustee**: Duty of loyalty, care, impartiality, to invest prudently, and to administer the trust according to its terms.
2. **Principal and Income**: Trustee must allocate receipts and expenses between principal and income beneficiaries according to the Uniform Principal and Income Act.
3. **Trustee Removal**: For breach of trust, lack of cooperation, unfitness, or substantial change of circumstances.
*D. Trust Termination*
1. **Revocation or Amendment**: According to terms of trust or if all beneficiaries and settlor agree (if revocable).
2. **Fulfillment of Purpose**: Trust terminates once its purpose is fulfilled.
3. **Operation of Law**: Due to illegality, impossibility, or other reasons dictated by law.
**III. OTHER CONSIDERATIONS**
*A. Powers of Appointment*
1. **General vs. Special**: General allows appointment to anyone, special limits to a specific group.
2. **Exercisable vs. Non-Exercisable**: Determines when power can be exercised.
*B. Family Protection*
1. **Homestead**: Restrictions on devise of homestead if survived by spouse or minor children.
2. **Elective Share**: Spouse’s right to claim a percentage of the elective estate.
3. **Pretermitted Spouse/Children**: Protection for those inadvertently omitted from wills.
*C. Fiduciary Administration*
1. **Probate Process**: Court-supervised process of administering the decedent’s estate.
2. **Personal Representative’s Duties**: Collect and inventory assets, pay debts, distribute residue.
3. **Creditor Claims**: Timelines and procedures for creditor claims against the estate.
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Remember that this attack sheet is a starting point and should not be the sole source of study. It is important to delve deeper into each topic and to review Florida-specific statutes and case law, as well as to complete practice questions and essays. Understanding how these laws apply in different scenarios and how to analyze hypothetical situations is crucial for success on the Florida Bar Exam.