Wednesday, June 20, 2012

Probate and Survivorship

To inherit from an estate, one must survive the decedent.  That seems straightforward enough, yet it is not always the case.

For example:  Abigail, a widow, aged 55 is driving in the car with her 22 year old daughter Bethany, her only child.  An accident occurs.  Abigail dies on the scene, Bethany dies 6 days later from injuries suffered in the accident.  Question - what happens to the estate.  The answer is it depends.  Yes, don't you just love an attorney! There are several issues that need to be examined:

  1. Did Abigail have a will?  If yes, we turn to the will to see what it says.  If not, state statute will govern distribution.  If there were a will did she name a partner?  A sibling?  Her daughter?
  2. What period of survivorship is required?  Under Wisconsin law and no will, the time frame is 120 hours, which is 5 days.  Typical wills call for survivorship of 90 days.  If Abigail had a will with this clause, her daughter would be considered predeceased and the estate would pass to her "plan b" for distribution.  If there were no will and it was Wisconsin, Bethany would be deemed to have survived, and her inheritance would go into her estate (husband, children, partner, etc.).
Sadly situations like this happen all the time.  And it underscores how important it is to think through who will inherit if your first designation does not survive you.  Remember, a blog is not an attorney.  Please consult one in your state for specifics about your situation.  And thanks for reading.

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