When are you dead, Part 2.
Posted on | January 5, 2010 | No Comments
I recently wrote on the issue of when are you dead for probate purposes here. The issue is important because Texas has a statute that says that if a person gives you something in their will and you don’t survive them by 120 hours, it is presumed that you predeceased them. The gift then goes to the person named in the will to receive the gift if you died before the Testator. The purpose is to keep the property from passing through several estates before it gets to the right person. However, this rule can cause some problems. I wrote about one problem in my first post on this issue but I have encountered another one.
This is the problem. Jack has a will that gives everything to Joe. Joe has a will that gives everything to Jill. Jack is found dead. The coroner investigates and says that Jack has been dead for 3 or 4 days but he puts the time of death on the death certificate as the time that he, the coroner, was called to the house. Joe dies less than 120 hours after Jack is found dead (the time on the death certificate) but more than 120 hours after the coroner says that Jack probably died. If Joe died within 120 hours of Jack, the gift of everything to Joe goes to whoever in the will takes if Joe dies before Jack and Jill does not get anything from Jack. If Joe died more than 120 hours after Jack, Jill would get everything owned by Jack and Joe. The people who would take the property if Joe died within 120 hours of Jack claim that the death certificate determines when Jack died. Jill disagrees and says that Joe died more than 120 hours after Jack. This is another question that the courts will have to answer.
Sorting out contested probate matters like these is what keeps lawyers working late into the night.
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