I'm looking at my Mother's will that was signed today. "No person hereinabove named or described in this will shall be deemed to have surviv...

Question

I'm looking at my Mother's will that was signed today. "No person hereinabove named or described in this will shall be deemed to have survived me unless he/she is living on the sixtieth (60) day succeeding the day of my death." Is this 60 day survive statement necessary and 60 days seems long? I'm the only living child and everything will be my responsibility as executor and beneficiary.

Answer

The clause is not required. If included, the number of days can be adjusted. Thirty and sixty days are the usual provisions seen.

The clause is inserted to protect against litigation in the event of a mutual death situation. That is most likely to arise with a couple since they would often be in the same place at the same time (say an automobile involved in a fatal accident).

Here, for example, if you and your Mother were in an accident together, who shares in her estate would often differ depending on whether you died first or your mother. That may be very difficult to determine. With some likelihood that there would be different heirs of her estate and your estate, you may need expert testimony, autopsy analysis, etc. (a costly lawsuit). The respective possible beneficiaries may have a lot to gain/lose.

This clause basically makes it clear that it is to be treated as you died first so that her wishes control regarding what happens to the estate. The longer periods used, would cover the slightly different situation of maybe, for example, you surviving your Mom by a few days after the accident. Again, it would be treated as if you actually died first so that her wishes would be followed since her original intent, leaving something to you, is not going to happen.

Effectively, whether it's an accident, heart attack, whatever, if you die within 60 days after your Mom, the point is that you really can't enjoy the benefit of your inheritance. You would be gone before it is even processed. So, she is saying in her will, I have set that period for my alternate provisions to apply, rather than have the inheritance have to pass from my estate into your estate and then to whatever governs that estate.

Your mother should revisit this with her attorney if she has an issue with it. Also, changing it will mean going through all the formalities again. I expect her attorney will need to bill approximately 1 - 1.5 hours.