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My Uncle Passed Away With A Will Questions

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LdiJ

Senior Member
Agreed. The probate lawyer I contacted said so as well. Below is the verbiage of the will.

The will is two pages with the second page declaring witnesses. On the first page there are 5 points.
1. Unmarried man leaving all my estate to "mother"
2. In the event she predeceases me I give my full estate to "brother".
3. I order and direct that my just debts and funeral expenses , expenses for my administration of my estate any inheritance taxes and succession taxes, state or federal, upon my estate shall be paid as soon after my death or as practical.
4. (Not exact verbiage but to the point) I nominate and appoint "mother" as executor of this will. In the event she predeceases me, I appoint "brother". I further direct that no appointee here under shall be required to give any bond for the faithful performance of his/her duties.
5. I hereby authorize my executor to exercise all the powers and rights, discretions, duties, and immunities conferred upon fiduciaries to the extent permitted by law with full power to sell. lease, mortgage, invest, reinvest, or otherwise dispose the assets of my estate.

Other than signatures, that's it.

JUST FOUND OUT that the cousin said he contacted another probate lawyer who told him the original non-probate lawyer was right. I don't believe this for one hot minute...because, cousin is basically so frustrated that he has washed his hands of this. He also has a gf who screams in the back of the room at him when he is on the phone talking to anyone about this. Yeah, it's getting intense. So, I guess, given all the indecisiveness, I'm gonna call another probate attorney myself to see what they have to say for myself and move forward from there. But since I'll have to wait until Monday now, do you have any thoughts? TY

My thoughts are that you get yourself appointed as executor of the estate and proceed as if Uncle died without a will, assuming that a second probate attorney agrees with the first one that you contacted. Otherwise, if the consensus is that the brother's children inherit it all, then walk away and let them deal with the estate.
 


zddoodah

Active Member
The will is two pages with the second page declaring witnesses. On the first page there are 5 points.
1. Unmarried man leaving all my estate to "mother"
2. In the event she predeceases me I give my full estate to "brother".
3. I order and direct that my just debts and funeral expenses , expenses for my administration of my estate any any inheritance taxes and succession taxes, state or federal, upon my estate shall be paid as soon after my death or as practical.
4. (Not exact verbiage but to the point) I nominate and appoint "mother" as executor of this will. In the event she predeceases me, I appoint "brother". I further direct that no appointee here under shall be required to give any bond for the faithful performance of his/her duties.
5. I hereby authorize my executor to exercise all the powers and rights, discretions, duties, and immunities conferred upon fiduciaries to the extent permitted by law with full power to sell. lease, mortgage, invest, reinvest, or otherwise dispose the assets of my estate.

Sorry it took me a while to get back to this. Here's what I'm seeing:

When a beneficiary under a will dies before the testator, they gift to the predeceased beneficiary "lapses." As you have described it, your uncle left his entire estate to his mother. Perhaps anticipating that is mother would die before him, your uncle provided that, if his mother died first, his estate would go to his brother. However, it seems he did not provide what would happen if the brother died first.

Most, if not all, states have something called an anti-lapse law. Generally, that law provides that, if a beneficiary dies before the testator and the testator does not otherwise provide for the disposition of the gift to the predeceased beneficiary, the gift goes to the heirs of the beneficiary. Michigan's anti-lapse law is found in MCL 700.2603. The unique thing about this law (at least I think it's unique) is that it only applies if the predeceased beneficiary "is a grandparent, a grandparent's descendant, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will." Your uncle's brother is a descendant of your uncle's grandparents, so the anti-lapse law should apply such that the heirs of your uncle's brother. Since it sounds like the cousin mentioned in your original post is not a child (or otherwise an heir) of your uncle's brother, he'll be out of luck in terms of inheritance.


JUST FOUND OUT that the cousin said he contacted another probate lawyer who told him the original non-probate lawyer was right. I don't believe this for one hot minute...because, cousin is basically so frustrated that he has washed his hands of this.

I don't really understand this explanation. Your cousin's frustration has nothing to do with how the law applies. Why do you not believe this? By the way, the concept of per stirpes is of no relevance to this.
 
Sorry it took me a while to get back to this. Here's what I'm seeing:

When a beneficiary under a will dies before the testator, they gift to the predeceased beneficiary "lapses." As you have described it, your uncle left his entire estate to his mother. Perhaps anticipating that is mother would die before him, your uncle provided that, if his mother died first, his estate would go to his brother. However, it seems he did not provide what would happen if the brother died first.

Most, if not all, states have something called an anti-lapse law. Generally, that law provides that, if a beneficiary dies before the testator and the testator does not otherwise provide for the disposition of the gift to the predeceased beneficiary, the gift goes to the heirs of the beneficiary. Michigan's anti-lapse law is found in MCL 700.2603. The unique thing about this law (at least I think it's unique) is that it only applies if the predeceased beneficiary "is a grandparent, a grandparent's descendant, or a stepchild of either the testator or the donor of a power of appointment exercised by the testator's will." Your uncle's brother is a descendant of your uncle's grandparents, so the anti-lapse law should apply such that the heirs of your uncle's brother. Since it sounds like the cousin mentioned in your original post is not a child (or otherwise an heir) of your uncle's brother, he'll be out of luck in terms of inheritance.




I don't really understand this explanation. Your cousin's frustration has nothing to do with how the law applies. Why do you not believe this? By the way, the concept of per stirpes is of no relevance to this.
We have a hearing next Friday regarding the appointment. I filed with my probate attorney intestate shortly before Xmas and then shortly after, the heirs of the deceased brother also filed testate with a non-probate attorney (if it matters). I came back here to ask a question which may be completely irrelevant now given your information that I didn't see until now. (my apologies).

I appreciate the info you have given me regarding the anti-lapse law. In all honesty, I tried to read it through it a few dozen times but it's beyond my scope to follow intellectually.... but I do believe this is a factor given the simple points you highlighted. You mentioned that the per stirpes was irrelevant. Maybe you can't answer this but the per stripes law is pretty clear to me and did not mention how it may revert to the anti-lapse law. Why is that? What is the difference? This is where my confusion sets in. And now I have to wonder if my "probate" lawyer, who should know ALL about this and should have taken it into account before letting me hire him, didn't take me for a little $3500 "ride" so far? Appreciate any follow up you may have to prepare myself for the hearing. Kim
 

quincy

Senior Member
We have a hearing next Friday regarding the appointment. I filed with my probate attorney intestate shortly before Xmas and then shortly after, the heirs of the deceased brother also filed testate with a non-probate attorney (if it matters). I came back here to ask a question which may be completely irrelevant now given your information that I didn't see until now. (my apologies).

I appreciate the info you have given me regarding the anti-lapse law. In all honesty, I tried to read it through it a few dozen times but it's beyond my scope to follow intellectually.... but I do believe this is a factor given the simple points you highlighted. You mentioned that the per stirpes was irrelevant. Maybe you can't answer this but the per stripes law is pretty clear to me and did not mention how it may revert to the anti-lapse law. Why is that? What is the difference? This is where my confusion sets in. And now I have to wonder if my "probate" lawyer, who should know ALL about this and should have taken it into account before letting me hire him, didn't take me for a little $3500 "ride" so far? Appreciate any follow up you may have to prepare myself for the hearing. Kim
You have a probate lawyer. You really should ask this attorney to explain everything to you until you fully understand.
 
You have a probate lawyer. You really should ask this attorney to explain everything to you until you fully understand.

I am on a " Free Advice" website and asked a question that could possibly displace my "probate lawyer", as a dishonest probate lawyer given . What is the problem with this inquiry?
 

quincy

Senior Member
I am on a " Free Advice" website and asked a question that could possibly displace my "probate lawyer", as a dishonest probate lawyer given . What is the problem with this inquiry?
There is nothing wrong with your inquiry - however your first step should be discussing your concerns, and asking your questions of, the attorney you have.
 
I am on a " Free Advice" website and asked a question that could possibly displace my "probate lawyer", as a dishonest probate lawyer given . What is the problem with this inquiry?
How can I ask my attorney if he is being truthful or at least giving me the correct info? To do so will cost me another $400 plus and then obviously I'm not trusting this info given case law given by zddoodad.. We presented the will in beginning to him. I'm not holding anyone's opinions against them here but I have learned to trust many. Brushing me off is not what this forum is about? At least I don't remember it being this way.
 
There is nothing wrong with your inquiry - however your first step should be discussing your concerns, and asking your questions of, the attorney you have.
With no disrespect I just learned of the possible issues HERE, which are valid! My PROBATE attorney did not discuss any of this with me prior. He looked at the will, called it invalid and proceeded to take my money. Even the per stripes or the anti lapse law. I came here to get info. You have nothing to offer to my inquiry given my descript. Why are you here? Why are you responding to my inquiry when you have no other advice then to send me back to my lawyer? How would I have known about the anti-lapse law if I had not come here? My lawyer certainly didn't tell me about it nor did I know enough to ask about it.. So this sight is basically good for nothing? Your mantra is to refer us back to our lawyer? Sorry if I seem insulted, but I am.
 

quincy

Senior Member
With no disrespect I just learned of the possible issues HERE, which are valid! My PROBATE attorney did not discuss any of this with me prior. He looked at the will, called it invalid and proceeded to take my money. Even the per stripes or the anti lapse law. I came here to get info. You have nothing to offer to my inquiry given my descript. Why are you here? Why are you responding to my inquiry when you have no other advice then to send me back to my lawyer? How would I have known about the anti-lapse law if I had not come here? My lawyer certainly didn't tell me about it nor did I know enough to ask about it.. So this sight is basically good for nothing? Your mantra is to refer us back to our lawyer? Sorry if I seem insulted, but I am.
I’m sorry I apparently upset you. That certainly was not my intent. It is just that no one on this forum is a probate attorney in Michigan.

Your best source of information is from either the Michigan probate lawyer you hired or, if you don’t trust what this attorney has told you or trust that he will tell you the truth for some reason, then you should seek out a different Michigan probate lawyer to assist.

It sounds to me like neither you nor your cousin will be inheriting anything from your uncle, based on my reading of your posts and the law.

You are, of course, free to wait for zzdoodah or another forum member to go over everything with you.
 

Zigner

Senior Member, Non-Attorney
With no disrespect I just learned of the possible issues HERE, which are valid! My PROBATE attorney did not discuss any of this with me prior. He looked at the will, called it invalid and proceeded to take my money. Even the per stripes or the anti lapse law. I came here to get info. You have nothing to offer to my inquiry given my descript. Why are you here? Why are you responding to my inquiry when you have no other advice then to send me back to my lawyer? How would I have known about the anti-lapse law if I had not come here? My lawyer certainly didn't tell me about it nor did I know enough to ask about it.. So this sight is basically good for nothing? Your mantra is to refer us back to our lawyer? Sorry if I seem insulted, but I am.
Being a jerk to one of the most polite and helpful members of this forum will get you nowhere.
You hired an attorney. You are represented. Talk to your attorney. Really.
 

quincy

Senior Member
Being a jerk to one of the most polite and helpful members of this forum will get you nowhere.
You hired an attorney. You are represented. Talk to your attorney. Really.
Thank you, Zigner. Very much appreciated.

I will provide allsaidanddone with a link to a case (Peter Dietrich v Renee Dietrich and Raquel Dietrich) that might help her understand the law better as it seems to apply to the uncle’s will as she has described it.

https://www.courts.michigan.gov/sit.../final/coa/20171017_c332751_56_332751.opn.pdf

I didn’t think I had been rude to allissaidanddone but tone is sometimes hard to judge in the written word. :)
 
I’m sorry I apparently upset you. That certainly was not my intent. It is just that no one on this forum is a probate attorney in Michigan.

Your best source of information is from either the Michigan probate lawyer you hired or, if you don’t trust what this attorney has told you or trust that he will tell you the truth for some reason, then you should seek out a different Michigan probate lawyer to assist.

It sounds to me like neither you nor your cousin will be inheriting anything from your uncle, based on my reading of your posts and the law.

You are, of course, free to wait for zzdoodah or another forum member to go over everything with you.
My sincere apologies Quincy. I'm very sorry that I came off so defensive and apologize for my behavior.
 

Mark_A

Active Member
I am not sure I understand all the facts and relationships here, but is seems to me that if all named beneficiaries are also no longer living, the estate would be distributed to the descendants of those mentioned in the will, per stirpes (if that is what your state requires).
 

quincy

Senior Member
I am not sure I understand all the facts and relationships here, but is seems to me that if all named beneficiaries are also no longer living, the estate would be distributed to the descendants of those mentioned in the will, per stirpes (if that is what your state requires).
You should read the thread and read the case out of Michigan linked to above. Per stirpes does not appear to apply - see Michigan’s anti lapse law.
 

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