Can a Last Will and Testament Become Invalid Due to Its Age?

We all know what happens to bread if we keep it too long and don't finish the loaf - it becomes stale and can't be eaten, and so it has to be thrown into the garbage. But can the same thing happen to a Last Will and Testament - can a will become too old, making it stale and not worth probating, and so it has to be thrown away? Absolutely. Below is an example of how a will can become stale, rendering it a useless piece of paper that should be thrown into the garbage.

Let's say that Sam writes his will in 2000 and it provides for the following:

  • The will leaves Sam's entire estate equally to his friends, Bob and Pam.

  • The will states that if either Bob or Pam predeceases Sam, then his estate will go to the other, but the will doesn't say what happens if both Bob and Pam predecease Sam.

  • The will names Bob and Pam to serve as co-executors of Sam's estate.

Assume that Sam signs his will with the proper legal formalities required by his state of residence, Bob dies in 2001, Pam dies in 2010, and Sam dies in 2011 without changing his will. So what happens to Sam's estate?

Even though Sam's will is still a valid legal document at the time of his death, it will have absolutely no say in who will inherit Sam's estate. In other words, Sam's will has become a useless piece of paper since both Bob and Pam predeceased him. So instead of Sam's estate being distributed as dictated by him in his will, Sam's estate will be distributed under the intestacy laws of the state where he lived at the time of his death as well as the intestacy laws of any other states where he owned real estate at the time of his death.

The bottom line - a stale will is not any better than no will at all. If your will is more than a few years old, take it out of the drawer, read it, and make sure that it still makes sense today.


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