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RayAnswers, Attorney
Category: Estate Law
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Experience:  Texas lawyer for 29 years in Estate law
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We are married, and each have 2 children by previous marriages.

Resolved Question:

We are married, and each have 2 children by previous marriages. We each have Michigan Statutory wills, in which we give everything to the surviving spouse, with our own kids as contingent. Our house is in joint tenancy. Our IRA accounts go to the surviving spouse , with some (A) going to my kids as contingent
beneficiaries, and others (B) to hers. If we die together, my understanding is:
my kids get (A); her kids get (B); they share equally the house , contents, and everything else due to the Uniform Simultaneous Death Act. Is this correct?
Submitted: 10 months ago.
Category: Estate Law
Expert:  RayAnswers replied 10 months ago.
Hi and welcome to JA. I am Ray and I will be assisting you tonight.

The kids here get the IRA outside of probate as named contingent beneficiaries.Any other assets without named beneficiaries of payable at death designation pass under your wills and the 120 hour law as you state to the surviving beneficiaries.

The wills would need to be admitted to probate and after any creditors paid distributed to the children as per your wills here.The court would admit the wills name a personal representative and as you state the proceeds are distributed under terms of your will.

The 120 hour rule provides here that each person has a half interest in marital property and any separate property and each persons share passes separately here to the named alternate heirs by will.This includes the house and any other assets where there are not named beneficiaries.For one spouse to inherit say in a car wreck unless they live more than 120 hours they do not inherit from the deceased spouse.Your will contains such language.

Reference to this..

http://milawyersweekly.com/news/2010/11/17/probate-%E2%80%94-epic-%E2%80%94-120-hour-rule/


I appreciate the chance to assist you tonight.Please let me know if you have more follow up.Thanks again.
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 29261
Experience: Texas lawyer for 29 years in Estate law
RayAnswers and 9 other Estate Law Specialists are ready to help you
Expert:  RayAnswers replied 10 months ago.
Here is the current version of the Simultaneous death --120 hour rule I referenced..

ESTATES AND PROTECTED INDIVIDUALS CODE (EXCERPT)
Act 386 of 1998

700.2702 Requirement of survival by 120 hours.

 

Sec. 2702.

(1) For the purposes of this act, except as provided in subsection (4), an individual who is not established by clear and convincing evidence to have survived an event, including the death of another individual, by 120 hours is considered to have predeceased the event.

(2) Except as provided in subsection (4), for purposes of a provision of a governing instrument that relates to an individual surviving an event, including the death of another individual, an individual who is not established by clear and convincing evidence to have survived the event by 120 hours is considered to have predeceased the event.

(3) Except as provided in subsection (4), if it is not established by clear and convincing evidence that 1 of 2 co-owners with right of survivorship survived the other co-owner by 120 hours, 1/2 of the co-owned property passes as if 1 had survived by 120 hours and 1/2 as if the other had survived by 120 hours. If there are more than 2 co-owners and it is not established by clear and convincing evidence that at least 1 of them survived the others by 120 hours, the property passes in the proportion that 1 bears to the whole number of co-owners. For the purposes of this subsection, “co-owners with right of survivorship” includes joint tenants, tenants by the entireties, and other co-owners of property or accounts held under circumstances that entitles 1 or more to the whole of the property or account on the death of the other or others.

(4) Survival by 120 hours is not required under any of the following circumstances:

(a) The governing instrument contains language dealing explicitly with simultaneous deaths or deaths in a common disaster and that language is operable under the facts of the case. Language dealing explicitly with simultaneous deaths includes language in a governing instrument that creates a presumption that applies if the evidence is not sufficient to determine the order of deaths.

(b) The governing instrument expressly indicates that an individual is not required to survive an event, including the death of another individual, by any specified period or expressly requires the individual to survive the event by a specified period. Survival of the event or the specified period, however, must be established by clear and convincing evidence.

(c) The imposition of a 120-hour requirement of survival would cause a nonvested property interest or a power of appointment to fail to qualify for validity under section 2(1)(a), (2)(a), or (3)(a) of the uniform statutory rule against perpetuities, 1988 PA 418, MCL 554.72, or to become invalid under section 2(1)(b), (2)(b), or (3)(b) of the uniform statutory rule against perpetuities, 1988 PA 418, MCL 554.72.

(d) The application of a 120-hour requirement of survival to multiple governing instruments would result in an unintended failure or duplication of a disposition. Survival, however, must be established by clear and convincing evidence.

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