Probate Surprise

A probate estate I tried to open this week has turned into a can of worms due to an old, old will that no one in the family, least of all the decedent, knew about. It appears that the decedent executed a will in 1943 just before he shipped out for military service during World War II. The will was signed in Georgia and the Army helpfully sent the will to the Wayne County Probate Court in Michigan to be deposited in case the soldier did not survive his deployment. Fortunately, the soldier survived the war. Unfortunately, he apparently forgot that he had executed a will in the confusion of mustering out.

The will was drawn up before the soldier and his young wife had any children. He left his entire estate to his wife, if she survived him. Otherwise, his estate was left to his brother. The soldier’s wife predeceased him, as did his brother. However, due to the way wills are interpreted, the decedent’s estate may go to his brother’s children, instead of his own. This situation provides several lessons for attorneys and clients.

First, a will is a serious legal instrument that should be given careful consideration. I suspect that the young soldier’s will was drawn up as sort of a group exercise when his unit was being deployed. This seems particularly likely because the will was a pre-printed form with only a couple of spaces for beneficiaries. When I counsel young people about drawing up a will, I advise them to consider the possibility that they may have children at some point–even if they do not have any at the time they are drawing up their will and even if they are not then married. They need to consider likely events in their future. This was not done in the young soldier’s case or he probably would have written his will to cover the possibility he might have children.

Second, the fact that the will would leave the estate to the same people who would receive it in the absence of a will does not mean that a will is unnecessary. There might be an old will out there that the perslon has forgotten about. A new will revokes a former will and that former will might have named beneficiaries who are no longer desired.

Finally, depositing a will with the probate court may not be a good idea. Family members would have a difficult time finding a will if the person moved around. It might be necessary to check with many county probate courts, both in-state and out-of-state. A will that is deposited with the court would be more difficult to revoke. The person whose will it is would have to visit the court to request that it be given back so it could be destroyed. As in this case, a will deposited with the probate court might come back to haunt the family decades after the testator’s circumstances have changed and he or she no longer wants the same distribution plan.

This cases teaches the attorney that no worst-case planning ever covers all the bases. This family would never have suspected that a 68-year-old will might turn up to disrupt their father’s estate plan. It also teaches attorneys who help veterans with their estate planning that they should keep in mind that their client might have been instructed to execute a will during pre-deployment preparations and new estate planning should take that into consideration.


John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2011 John B. Payne, Attorney

No Comment on "Probate Surprise"

Leave a Reply

Your email address will not be published. Required fields are marked *