Intestate Succession Rules Can Be Tricky to Apply

APRIL 4, 2016 VOLUME 23 NUMBER 13

March was “Write-a-Will” month (sometimes referred to as “Why a Will” month). Though we’ve never understood the difference, August will be “Make a Will” month again this and every year.  In the United Kingdom, every March and October are “Free Wills” months. Or is it April?Or is that only in Canada?

With all the emphasis on the importance of getting estate planning done, you’d think people would actually get around to writing a will. It turns out that any month is a good one for illustrations about why making a will is important.

Consider Kent Konrad (not his real name), who died in Michigan in February, 2012 — just weeks before his 60th birthday. He never wrote a will. His estate became embroiled in a fight about who was entitled to receive his property.

Kent never married, never had children. Both of his parents had died before him. The Michigan rules for “intestate succession” (the default distribution for people who have not made a will) directed that his estate should be distributed half to the descendants of his maternal grandparents, and half to the descendants of his paternal grandparents.

That seems fairly straightforward, but there was a wrinkle. Kent’s father was a posthumous child. In other words, Kent’s grandfather (Karl) died before Kent’s father was born. In fact, Karl died as a result of a fight over the affections of Kent’s grandmother; the couple had quarreled, and Karl had threatened anyone who might try to date his girlfriend. When another man attempted to kiss her, Karl knocked him down with a single blow — the suitor got up and stabbed Karl to death. Karl died in 1931; Kent’s father was born three months later.

Kent’s grandmother never had any other children, so under Michigan law his paternal relatives’ share would go to Karl’s other descendants — a son Ernest. Except for the wrinkle.

Kent’s maternal relatives argued that Ernest should not receive any share of Kent’s estate. Why not? Because Karl never acknowledged Kent’s father, and never agreed to support him. Under Michigan law (Arizona has a similar statute), that permitted an argument that Karl could not inherit from his son or his son’s children — and that arguably would cut Ernest out from receiving any share of Kent’s estate.

Nonsense, ruled the Michigan probate judge. Not only was Ernest the closest relative in Kent’s paternal lineage, he should receive half of Kent’s estate. The other half would be divided among Kent’s cousins on his mother’s side of the family.

The Michigan Court of Appeals agreed. The fact that Karl died before ever even meeting his son did not amount to a refusal to acknowledge or support him, according to the appellate court. Although one of the three appellate judges deciding the case disagreed, the court upheld the probate judge’s ruling by a 2-1 vote. Estate of Koehler, March 24, 2016.

It is important to keep in mind that the legal dispute over Kent’s estate could easily have been addressed. All Kent needed to do was to sign a will. The precise relationship of his uncle and cousins would then have been unimportant. He could have left his estate in shares, or all to his uncle, or all to his favorite cousin, or all to his girlfriend, or to charity. He could have left some or all of his estate in trust to take care of his two dogs — or any variation or combination of those choices.

If Kent had signed a will, could his uncle, or his cousin, have challenged the will? Well, yes — but will challenges are very rare, and even more rarely successful. It would not be enough to show that there was confusion over his family relationships — anyone contesting the will that Kent should have signed would have to show that he was incompetent, or mistaken, or unduly influenced.

Why do people not get around to signing wills? Reasons vary, of course — some people don’t think it’s important, some just can’t get focused on their own mortality, some mean to make that appointment but just don’t get around to it.

Don’t wait for a pre-set month to get your will written. Don’t wait for inspiration, or discounts, or free clinics. If you don’t have a will, this would be a really good month to get the task done.

©2017 Fleming & Curti, PLC