Can a Last Will and Testament Become Invalid Due to Its Age?
When Is a Will Invalid?
When does a will become invalid? We all know what happens to bread if we keep it too long without finishing the loaf. It becomes stale and nobody wants to eat it. It gets thrown out. Can the same thing happen to a last will and testament? Can a will become too old, making it stale and not worth probating? Will the court throw it away?
It can happen. Here's an example of how a will can become a stale, useless piece of paper that should be thrown in the garbage.
The Case of the Stale Will
Let's say that Sam wrote his will in 2005 and it provides for the following:
- It leaves Sam's entire estate equally to his friends, Bob and Pam.
- The will states that if either Bob or Pam should predecease Sam, his estate will go to the survivor, but it doesn't say what should happen if both Bob and Pam predecease Sam.
- The will also names Bob and Pam to serve as co-executors of Sam's estate.
Assume that Sam signs his will with the proper legal formalities required by his state of residence. Then Bob dies in 2006, Pam dies in 2015 and Sam dies in 2016 without ever updating or changing his will. The will has become invalid.
What happens to Sam's Estate?
Even though Sam's will is still a valid legal document at the time of his death, it no longer says who should inherit Sam's estate. Sam's will has become useless because both Bob and Pam predeceased him. Instead of Sam's estate being distributed as dictated by the terms of his will, it will be distributed under the intestacy laws of the state where he lived at the time of his death. It might additionally be subject to the intestacy laws of other states where he owned real estate or tangible personal property at the time of his death.
If Sam had married or had children between the time he wrote his will and his date of death, the laws of most states would have kicked in to provide for them even though he never mentioned them in his will because they didn't exist in his life at the time. These are called "pretermitted" heir laws.
But Sam had fallen deeply in love with Sue and but they got around to getting married, Sue would not receive any of Sam's estate. She wasn't mentioned in the will and she's not related to him by marriage or blood.
The bottom line? Having a stale will might be no better than not having a will at all. If your will is more than a few years old, take it out of the drawer, read it, and make sure that it's still valid.
NOTE: State laws change frequently and Sam's estate is just a simple example. Far worse complications can arise from a stale will if the will or the estate are complex. Please consult with an attorney for the most up-to-date advice. The information contained in this article is not legal advice and it is not a substitute for legal advice.