Peacock Tales • Summer 2017
We are always urging clients to update their wills and powers of attorneys. Of course clients do not always listen to us. Sometimes old documents are worse than no documents at all. Life's changes, such as divorce, can cause havoc with legal documents. Under Pennsylvania law, unless there is a clear contrary intent, a divorce has the effect for many purposes, but not all, of treating the ex-spouse as if he or she died before the other spouse. Here are a few examples.
Father signed a will in 1973 leaving his personal property to his wife and then to his children and all the residue to "Old Bank" as Trustee. The will
appointed his wife and the bank as co-executors. The father left the original will with the bank and never prepared a new one.
Mother and father divorced in 1999. In November of 2016 father wrote a handwritten codicil (amendment to the will) leaving money invested with his accountant to his two children. Father died shortly thereafter.
At father's death the only assets in his name alone were his personal property covered by the 1973 will, and an investment account with his accountant which was addressed by the codicil. To properly administer his estate the 1973 will and 2016 codicil had to be probated. To do so the bank had to renounce its right to serve as executor and a copy of the 1999 divorce decree had to be filed. It would have been better if father had torn up his 1973 will as the personal property would have passed to his children anyway.
Mother executed a will in 1997 naming her husband as primary beneficiary as well as her agent on a power of attorney. She placed the original will in a safe deposit box. The box was in joint names of mother and father. They divorced in 2003. Mother died and the children found a copy of the 1997 will and believed that the original was in the safe deposit box. The bank refused to open the safe deposit box for a will search because father's name was still on it, even though he had divorced mother thirteen years earlier. Eventually the box was opened with prior notice to the Pennsylvania Department of Revenue and with the father's authorization, only to discover that the box was empty. The original will was presumed to have been revoked by the mother because she had control of the original and it could not be located at her death. Had mother torn up a copy of the will and closed the safe deposit box, her children could have been spared a lot of bother.
A few rules to keep in mind:
Peacock Keller & Ecker, LLP • 70 East Beau Street • Washington, PA 15301 • 724-222-4520