Suppose there’s a short family tree with a mom, her son and daughter, and the daughter’s two adult children. Suppose mom’s will says the kids are to inherit her estate evenly, 50/50. Mom dies on November 1, and nobody has even read the will, let alone gone through any legal proceedings. On November 3, the daughter dies, and her will leaves everything to her two kids, the elder lady’s grandchildren. Who gets what portion of the grandmother’s estate?
If the daughter inherits immediately upon mom’s death, then mom’s assets are part of her estate and fall to the two children. If the estate has to go through probate first, then the daughter would be dead by that time, and the son would inherit all of mom’s estate.
How does the law treat the death of an inheritor that happens after the first death but before the will is read and executed?
AI reports the following, which basically jibes with my layperson understanding of the issue:
“When a will beneficiary dies after the testator (will-maker) but before getting their inheritance, their share usually goes to their own heirs (via state anti-lapse laws or the beneficiary’s will), or it falls into the residue of the original estate if no heirs are found, depending heavily on the original will’s terms and state law. The executor must check for contingent beneficiaries, apply anti-lapse statutes (which often favor descendants), or follow residual clauses; if all else fails, intestacy laws guide distribution.”
But I expect someone with actual knowledge will be along soon.
IANAL, but as I understand it, the change of ownership happens instantly, and the legal proceedings afterwards are just to determine what already happened. So when the mother died, half of her estate went to the daughter, and then that half of the estate (and whatever other assets the daughter had) went to the grandchildren.
There’s a complication when the deaths are so close to simultaneous that it can’t be determined who died first (as, for instance, in a car accident). I think that the typical procedure there is that the oldest is assumed to have died first.
I’ve seen wills where a certain number of days has to elapse before the beneficiary dies for the inheritance to pass to them. If the beneficiary dies before that, their share reverts back to the estate.
For example, there’s the old ‘but to inherit the fortune you must first spend the night in the spoooky chateauuuuu….’ clause. Dying (or being made dead) before sunrise would invalidate your claim and that of your heirs and it would all go to the creepy incel nephew.
It is my understanding that bizarre clauses like that or “must be married before a specific date”, “must spend $30 million” or “must solve a series of intricate puzzles”, only apply to massive estates belonging to distant relatives.
It’s not my area of specialty and I’m probably not in your jurisdiction but what Chronos says would be right where I am.
Laypeople tend to place too much emphasis on some sort of “reading of the will” ceremony. At least where I am (a) it doesn’t happen and (b) if it did it would merely be a recitation of what was already effected by the will and has no legal effect, triggers nothing, and it’s timing is unimportant. Perhaps it actually has legal effect somewhere, but I suspect it’s mostly a creature of movies that require the drama of a “reading of the will” scene where all the beneficiaries can show delight, disappointment, surprise, shock, hatred and jealousy at one another. Scenes in which individual beneficiaries get told what they have inherited individually by phone or letter don’t make good cinema.
It is common where I’m from for wills to make bequests contingent on the beneficiary surviving the testator by (say) fourteen days, to avoid the issue of bequests having to pass through someone else’s estate to get to the surviving beneficiaries. The most common scenario is where husband and wife have wills where each gives all their estate to the other, but in the event of the other being deceased, then all to the children. Then they have a car crash in which the couple die more or less at once. The fourteen day requirement saves the estate from having to pass from wife/husband to husband/wife to children. Instead it goes straight to children as the wife and husband do not survive fourteen days after one another.
There’s a reason you hire a lawyer to write a will. There’s a legal phrase (per capita) for “surviving children” and (per stirpes) for “if they are already dead, their children” etc.
The “provided they survive X days” is usually in the will for spouses. If both spouses are in a car crash, and say one lives an extra day or two before they pull the plug, who gets what? This can be important if it’s a blended family and Bob’s kids get nothing if Sally lives an extra few hours her kids get it all (Because she inherited from her husband).
Simple point is if both die about the same time then the estate is presumed to go as if they both died simultaneously. How that works for communal property, etc. - well, that’s why there are lawyers to write wills. This is why you should have wills.
My former boss many years ago had that concern. His wife brought significant debt into the marriage, he had massive savings and a pension. They built a retirement house. They each had 2 children. He could not write his will that his wife got her share and the house, but all 4 kids split the estate when both of them died. (She could put that in her will too - but you can’t stop someone from changing their will later). There was no disagreements or animosity - they just wanted to know what they could legally do. What they did do was sign a letter of intent - non-binding - that this is how the estate would ultimately be equitably divided.
Everyone should have there rational discussion about the long term future.
As a data point supporting some of the above - my parents wills both say that “No person shall be deemed to have survived me if such person shall die within 30 days after my death.” Followed by clauses about being able to withdraw items to support spouse and kids during that time, so things are not completely frozen.
My brother-in-law’s sister was set to be the beneficiary of a lifetime trust, but the will/trust stipulated that if she ever remarried (she was a widow when the will was made) she’d be cut off. It was a sore spot with her for the rest of her life.
When I asked my BIL if he knew how much money was involved, he replied it was less than $10,000 - but it was a control thing between the mother and daughter.
Depends on the country, and in the US, 50 different state laws.
The will gets delivered to the court and an executor handles it. In many cases this is a close relative so probably the son here. If there is no will, it is intestate and the results may end up being the same, but the process may be a little different. We’re assuming no “must spend a night in the haunted mansion” clauses here, a standard will or intestate inheritance will usually be something simple like 50% to the son, 25% each to the grandkids. The probate court will make sure the correct people are named and no malfeasance occurs. Though if the kids are young there may be some sort of conservatorship situation.
States with community property laws (CA, NV, WA, ID, AZ, NM, TX, LA, WI, and PR and GU) may have an added wrinkle, for example if grandmother or mother had a husband, even deceased, 50% may be towards his share, which may have already been handled or not.
I’m going through something similar now in CA (post-estate unclaimed property), it’s a lot more straightforward but still a lot of paperwork, they now want a “family tree” type document well beyond typical inheritance scope.
AFAIK the law in Canadian provinces, and presumably in many states, is if the person dies intestate the government trustee(?) steps in as executor and the usual distribution is 50% to spouse and equal portions of the other 50% to each child (per stirpes). Obviously, no child - then 100% to spouse. If no spouse, who knows? Probably a list of who is the closest surviving relative(s) as heir.
However, one article I saw was that for people with relatively small inheritances - say, $100,000 or less - the danger is the public trustee’s fees may eat up a significant amount of the estate. Even for larger ones, it can be a significant percentage.
Many states have statutory survival requirements. For example, in Texas, the default is 120 hours. Absent some other language in the will on the subject, if a beneficiary does not survive the testator by 120 hours, then it is as if they pre-deceased the testator.
There are also typically anti-lapse statutes that address the situation of a beneficiary pre-deceasing the testator.
Also saves them from owing estate tax each time this inheritance goes to another heir.
Otherwise the husband dies first, wife inherits everything (and owes estate tax on it), wife dies a few hours later, their kids inherit everything (and owe another estate tax on it). So double estate tax on this inheritance.*
*Note that under current US law, estate tax only matters for multi=million dollar estates.
