Probate rule for deaths less than 120 hours apart

[jtjumper]

What is the name of your state (only U.S. law)? Michigan
My stepfather died suddenly, and then, four days later, my mother died of terminal cancer. In my mother's will, it says that everything that she had was supposed to go to my stepfather, but that if he predeceased her, everything would come to my sister and me.

My mom's inheritance isn't much: a life insurance policy for $36,000 (which was in her name, with her husband as the sole beneficiary), about $3000 in the bank (in accounts in both of their names), and a small property of little value that had been our paternal grandparents' before their death (they gave it to our mother with the intention that we would have it once she died.). However, my stepfather left no inheritance at all for his three adult children.

Now, my lawyer told me that, because my mom and stepdad died within 120 hours of each other, then the two of us PLUS my stepdad's three adult children will receive her inheritance in equal portions, once the estate goes through probate court. He said that this is the case because if spouses die within 120 hours of each other, it is basically dying at the same time, according to the law in Michigan.

Is our lawyer being level with us? Is it likely for the judge to disregard her explicit instructions in the will, just because she and her husband died within 120 hours of each other (but of different causes)?

 

[justalayman]

700.2104 Requirement that heir survive decedent for 120 hours.
Sec. 2104.

An individual who fails to survive the decedent by 120 hours is considered to have predeceased the decedent for purposes of homestead allowance, exempt property, and intestate succession, and the decedent's heirs are determined accordingly. If it is not established by clear and convincing evidence that an individual who would otherwise be an heir survived the decedent by 120 hours, it is considered that the individual failed to survive for the required period. This section does not apply if its application would result in a taking of the intestate estate by the state under section 2105.

as I read It, if the stepfather had no will it would apply to his estate but since your mother had a will, it does not apply to her estate proceedings other than the homestead allowance and exempt property. Since your mother had a will, her estate would be directed by her will. Her husbands estate will be probated as if she predeceased him.

 

[Dandy Don]

You may want to get a second opinion from another probate attorney (and do not tell your current attorney that you are doing so)--I suspect that you have been given incorrect advice. The phrase "for purposes of homestead allowance, exempt property and intestate succession" applies to those situations only, and none of those situations apply here. A second attorney could look at the context of the entire probate law.

Normally life insurance is paid out to the named beneficiaries and if beneficiaries were named, the life insurance money does not go into the estate. Have you checked with the life insurance company to see if your mother named beneficiaries for this money or do you already know for sure that there were no designated beneficiaries and that the money is going into her estate?

The judge is going to administer the will in accordance with state law. Sometimes wills are written without understanding of the implications of how state law will affect the distribution.

 

[Zigner]

...do you already know for sure that there were no designated beneficiaries and that the money is going into her estate?

The OP said that stepdad is the sole beneficiary of the life insurance policy...

 

[LdiJ]

as I read It, if the stepfather had no will it would apply to his estate but since your mother had a will, it does not apply to her estate proceedings other than the homestead allowance and exempt property. Since your mother had a will, her estate would be directed by her will. Her husbands estate will be probated as if she predeceased him.

I do not think that really answers the question about the life insurance. If stepdad is the only beneficiary of the life insurance, and he died before mom, then does the life insurance go to his estate, and therefore to his children, or does the life insurance revert to mom's estate? I do not know the answer to that question, but I am quite curious in knowing the answer to that question.

 

[Dandy Don]

Poster needs to check at the county courthouse to find out for sure whether stepfather had an estate that was officially probated in court or whether there were no estate proceedings for him. If there was no estate (which I assume has happened), then stepfather has an intestate estate, which does apply, and this means that the original advice she was given was correct.

 

[justalayman]

I do not think that really answers the question about the life insurance. If stepdad is the only beneficiary of the life insurance, and he died before mom, then does the life insurance go to his estate, and therefore to his children, or does the life insurance revert to mom's estate? I do not know the answer to that question, but I am quite curious in knowing the answer to that questionIf there is anything it would be in insurance law

I think everybody is looking st this backwards. It doesnt affect the mothers estate at all. It only affects the step fathers estate. His estate is dealt with, other the the exceptions noted, as if his wife predeceased him.

 

[justalayman]

Poster needs to check at the county courthouse to find out for sure whether stepfather had an estate that was officially probated in court or whether there were no estate proceedings for him. If there was no estate (which I assume has happened), then stepfather has an intestate estate, which does apply, and this means that the original advice she was given was correct.

Except the wife or her estate in this situation, would still have a claim to the homestead allowance as specified in the law as well as any other exempt assets.

 

[LdiJ]

I do not think that really answers the question about the life insurance. If stepdad is the only beneficiary of the life insurance, and he died before mom, then does the life insurance go to his estate, and therefore to his children, or does the life insurance revert to mom's estate? I do not know the answer to that question, but I am quite curious in knowing the answer to that questionIf there is anything it would be in insurance law

I think everybody is looking st this backwards. It doesnt affect the mothers estate at all. It only affects the step fathers estate. His estate is dealt with, other the the exceptions noted, as if his wife predeceased him.

It does not make sense that his estate is dealt with as if his wife predeceased him. It makes sense if both of their estates are treated as if they died at the same time, but otherwise it does not make sense, as he actually predeceased her.

 

[justalayman]

It does not make sense that his estate is dealt with as if his wife predeceased him. It makes sense if both of their estates are treated as if they died at the same time, but otherwise it does not make sense, as he actually predeceased her.

Notice the law speaks of the decedents estate, not the person who Did not survive them by less than 120 hours. Basically it does make it as if the mother died prior to him...for his estate. It does not address the short term survivors estate at all.

 

[LdiJ]

Notice the law speaks of the decedents estate, not the person who Did not survive them by less than 120 hours. Basically it does make it as if the mother died prior to him...for his estate. It does not address the short term survivors estate at all.

Ok, either I am not understanding you, or you are not understanding me.

However, could you please answer the question about the life insurance in plain language. He was the only beneficiary of his life insurance. His children are the only beneficiaries to his estate. He died before his wife did. With the 120 hour deal in mind. 1) Does the life insurance go to his estate and then to his 3 children, or 2) does the life insurance return to mom's estate and therefore go to her 2 children, or 3) does the life insurance go to all 5 of them equally (mom's kids and dad's kids) as the attorney appeared to indicate?

Please feel free to just choose 1, 2 or 3 as your response.

 

[justalayman]

Ok, either I am not understanding you, or you are not understanding me.

However, could you please answer the question about the life insurance in plain language. He was the only beneficiary of his life insurance. His children are the only beneficiaries to his estate. He died before his wife did. With the 120 hour deal in mind. 1) Does the life insurance go to his estate and then to his 3 children, or 2) does the life insurance return to mom's estate and therefore go to her 2 children, or 3) does the life insurance go to all 5 of them equally (mom's kids and dad's kids) as the attorney appeared to indicate?

Please feel free to just choose 1, 2 or 3 as your response.

#2. The insurance is not bound by the probate law. You treat it as you would without the predeceasing issue. Due to that since he had already passed at the time of the wife's death (when the insurance policy would become payable) it reverts to the mothers estate and as such, to the op and siblings.
That is presuming the policy itself doesn't hold a hidden gem that would cause it to be paid to some other entity.