The Divorce, the Dead Son, and the Stepchild: Reading a Michigan Will

Bethany takes one-half of the residue; Aaron's two children split the other half; Carl takes nothing under the will; the truck devise fails.

Residue to 'my children, per stirpes.' Bethany is a child and takes one-half. Aaron predeceased, and his one-half passes to his two children, one-quarter each. The result is the same whether you reach it through the per stirpes language (applied at the children's generation) or through EPIC's anti-lapse provision, which rescues a devise to a child or other descendant of the testator who leaves issue.

Carl is the hard question. A stepchild is not a child for will-construction purposes unless legally adopted. EPIC's parent-child provision governs adoption and the parent-child relationship, and Harold never adopted Carl. The college tuition, the Christmas letters, and being raised in the household are sympathetic but do not make Carl a child - they are evidence of affection, not of legal status, and admitting them to vary an unambiguous term invites an error. Michigan permits reformation for a mistake of expression, but that requires clear and convincing evidence of what the will actually said versus what the testator meant to say; here the text says 'children' and means it. If Harold wanted Carl included, the will needed to say 'my children and my stepson Carl.'

Carl's real comfort is the $400,000 POD account, which passes outside the will entirely.

The truck: a specific devise fails if the testator did not own the property at death. Michigan follows an intent-based ademption approach - a voluntary sale or trade-in adeems the gift, and the devisee takes nothing; where the change was involuntary (condemnation, a guardianship sale), the devisee may take the replacement or its value. Harold traded the truck in himself, so Aaron's devise is adeemed, and Aaron's children do not get the Silverado. It falls into the residue.

Diane cannot serve, and Bethany is the likely appointee - but the appointment is discretionary.

The 2016 will is revoked to the extent of inconsistency by the 2021 will, which disposes of the entire estate. Even setting revocation aside, MCL 700.2807 revokes by operation of law every provision of a governing instrument favoring a former spouse when the divorce follows execution of the instrument, and the former spouse is treated as having predeceased the decedent. That statute reaches fiduciary nominations. Diane is therefore out on two independent grounds, and she is not an heir either.

The 2021 will names no one. Under the EPIC priority statute, after a will-nominated personal representative, priority generally moves to the surviving spouse (none here), then to devisees and heirs. Bethany is the only adult devisee and the natural nominee. Aaron's two minor children are also devisees, and their guardian or guardian ad litem is entitled to notice and an opportunity to object. The probate court retains discretion and must consider the best interests of the estate. Bethany's status as a beneficiary is expected and is not disqualifying, but if a conflict develops - for example, a dispute over the POD account or the insurance proceeds - the court may prefer an independent personal representative.

Procedure: Bethany should petition for informal probate and appointment, with notice to the children's guardian ad litem. If anyone contests, the matter moves to formal proceedings with a hearing. The will contains no bond waiver, so address bond in the petition, and calendar the inventory deadline (91 days after appointment) and the notice to creditors.

Do not forget the obvious: Diane is not a devisee and has no standing to object on priority grounds.

Diane probably takes nothing on the policy - which changes the arithmetic - and Carl keeps the POD account.

The life insurance policy is a governing instrument. MCL 700.2807 provides that a divorce revokes every provision in a governing instrument favoring the former spouse, who is then treated as having predeceased the decedent, unless the instrument or the divorce judgment expressly provides otherwise. The 2012 policy was never updated and names only Diane, with no contingent beneficiary. Unless the policy or the judgment of divorce says otherwise, the designation is revoked and the proceeds are payable to the estate - not to Diane. Those proceeds then pass under the 2021 residuary clause: Bethany one-half, Aaron's children one-quarter each.

Carl's POD account is different. Carl is not a former spouse, and a POD designation is a contract between Harold and the financial institution; it passes outside probate, is not controlled by the will, and is not part of the residue. Carl keeps $400,000 even though he takes nothing under the will. A court would reach it only if the estate were insolvent and a creditor invoked a non-probate creditor or fraudulent-transfer theory, which is not the situation here.

Creditors: the $90,000 of debts is paid from the probate estate before distribution. If the policy proceeds fall into the estate, the probate estate is $850,000; net of debts and administration, roughly $740,000-$760,000 passes per stirpes. If the proceeds do not fall in, the residuary is $600,000 less $90,000. The adeemed truck devise adds nothing either way.

Action item: obtain the judgment of divorce and any settlement agreement. If it contains a waiver of the life insurance or an obligation to maintain the policy for Diane's benefit, Diane may have a contract claim against the estate that exists independently of the beneficiary designation - and that claim would be presented in the probate proceeding, not by claiming the policy proceeds.