When a will is drafted for an estate plan, always compile a complete list of intestate heirs, including their addresses. Intestate heirs are relatives who would inherit if there were no will. When a will is probated it is necessary to notify all heirs, not just named beneficiaries and devisees. Excluded beneficiaries must have the opportunity to challenge the will if they think it is not valid. A surprising number of attorneys ignore or do not understand this bedrock principle of probate practice. Recent cases show how difficult it can be to find all the heirs when an estate planner fails to provide a list.
In Estate of Bannon, a modest estate with a will and a trust leaving everything to named beneficiaries was being opened. However, it was necessary to search for a grandson who had departed for parts unknown in the ‘90s. The search cost over $2,000. Although he received nothing, it was necessary to find and serve him.
Another decedent named Spicer had four deceased siblings with seven surviving children and grandchildren in four states. All of them had to be found and served with probate papers.
In a particularly difficult case, Estate of Cruz, the decedent died in his 90s with no surviving spouse, offspring, parents or issue of parents. The Consanguinity Table shows how degrees of consanguinity is calculated for a given person. Cruz had no surviving parents or descendants of parents, so it was necessary to research the third column to determine whether there was at least one surviving grandparent or issue of a grandparent. Trying to find Cruz’s grandparents, who were Canadians who died in the middle of the last century, then track their offspring has been extremely difficult.
When drafting estate plans, it is crucial to define and record the family tree to the extent it is likely to come into play if it is necessary to open probate. Do not simply ignore estranged relatives on the basis that they are excluded from any plan of distribution.
John B. Payne, Attorney
Garrison LawHouse, PC
Dearborn, Michigan 313.563.4900
Pittsburgh, Pennsylvania 800.220.7200
©2017 John B. Payne, Attorney