Question about a will (NOT seeking legal advice)

In My Humble Opinion
1

Folks, a question arose in a conversation I was having with a buddy the other day. Seems there was a slight controversy in his family over his father’s will. In a nutshell, the controversy centered on “what was typically done in this situation.” I’ll start by setting the scenario up. (My buddy is the Son.)

– There is Father. His wife is dead, and he is elderly. He has two children, Son and Daughter.
– Son is married to Son’s Wife. They have been married ten years, and have no children.
– Daughter is married to Daughter’s Husband. They have been married 15 years and have two minor children, the Grandkids.

Father’s will currently divides his estate equally between Son and Daughter when he dies. Period. But this bothers Daughter somewhat. She wants Father to add a clause to his will that if she (Daughter) predeceases Father, that her share of Father’s estate goes to the Grandkids. Daughter’s Husband apparently is looking at a very nice inheritance from his own father, and rather than take Daughter’s share of Father’s, he wants to see it go straight to his and Daughter’s kids–the Grandkids. It may have to go into a trust fund until they are old enough to receive it under the law, but fair enough, and a nice gesture.

Son is happy with the situation as it stands. He will come into half of his father’s estate. And should he predecease his father, his estate will benefit. If it comes to that, it will be a nice little nest egg for Son’s Wife, who is Son’s only beneficiary.

But this also bothers Daughter. The way she sees it, if Son predeceases Father, his share of Father’s estate should go to Daughter. She wants Father to put a clause in his will stating as much. Son and Daughter had a few words.

“I want my share, whether I’m dead or not,” Son said. “And if I am dead, my wife will benefit from my estate, which will receive my share from Father’s estate.”

“But that’s not typically done,” Daughter argued. “Usually, the parent would divide the estate among the surviving children. Not an estate. Unless there are children, and Son, you don’t have any. If you die, your share should come to me, so the Grandkids will eventually benefit. It’s typically done that way.”

That phrase, “it’s typically done that way” bothered Son, and it bears on the question I will pose to you in a minute.

My opinion, which I told Son, was that it’s Father’s estate, and it’s his to delegate as he pleases. If he wants to divide equally it among Son and Daughter, fine. If he wants to add clauses on “what to do if,” fine. But cutting out one child’s estate in case of that child’s death before the parent bothered me as well. It wasn’t a matter of “typically done that way,” I told Son; Daughter sounded just plain greedy to me, and “typically done that way” was an excuse.

But that’s just me, and not all might feel the same way, so I thought I’d bring the question here. Dopers, in a scenario such as I’ve posed, what do you say? Ignoring for a moment the fact that if one of his children predeceases him, Father really should draw up a new will to specify what to do in the changed circumstances, do families divide things depending on who is alive? Is it “typically done” to cut a deceased child’s estate out of a will, so surviving children get greater amounts of the parent’s estate (and spouses who married into the family get nothing)? Or is this unusual?

NOTE: This is not a legal question. No legal advice is being asked for, nor is it wanted. The real Father is still “of sound mind and body,” as the phrase goes, and apparently has a lawyer who will look after any changes to his will legally and correctly. All I’m looking for are thoughts on the “typically done this way” question. What do families “typically” do?

2

Aw, I posted in the wrong forum. Could a mod please move this to IMHO? Thanks!

3

That’s really odd. I’d never heard of a situation where a predeceasing child took anything under a will. (In simpler words, I’m in Daughter’s camp – it never would have occurred to me that Son’s wishes could be carried out.) Normally, if a person is dead, they no longer can take anything under a will. So if Son dies before Dad, how Dad’s will (“and half to Son”) is interpreted depends on state law if the will itself does not provide for a resolution. Typically, the will says, “and my estate to be divided equally among my suriving children, Son and Daughter.”

So Son’s thought that his wife would get taken care of if he predeceases seems really, really odd to me – does he think that if he were to die tomorrow, and his wife remarry, have seven children, then die, then Dad dies – does Son think those new seven children should get Dad’s estate?

I guess it seems odd to me that both Son and Daughter seem to assume that the estate could pass to the spouses if the blood kin predecease the testator. That’s an oddly drafted will, if so, and contrary to how I’ve always understood stuff to pass.

But, the caveats – it’s been a good ten years or so since I took estates and trusts, and I don’t practice in that area of the law, so maybe things have changed a lot since then, and maybe (no, definitely) I’ve forgotten a lot about estate law. But there always had been a presumption in favor of blood relatives over relatives by marriage.

My personal opinion? If they decide that they want either the spouse or the grandkids to take a share they need to talk to a lawyer about setting up trusts. Don’t leave it to a will to make happen what they want to happen.

4

This could probably go in GQ, too, since you seem to be asking a few questions with factual answers, but you’re also asking for opinion, and did say you meant to post this in IMHO, so I’ll let that be the deciding factor about where it goes.

5

Many thanks, SkipMagic!

Actually, I may suggest this to Son the next time I speak with him. Thank you!

6

In my Decedents’ Estates class, there was much discussion of intestate succession and the way that some states allow children of pre-deceased children (i.e., the decedents’ grandchildren whose parents are already dead) to take “per stirpes” (pronounced “per STIR-pees”), meaning that if the decedent’s kid would have taken 1/4 of the estate, but died before the decedent did, then the kid’s kids split that 1/4 equally among them. This is also called taking “by representation.”

However, I don’t think the predeceased child’s spouse would take anything under this system, because these laws (which vary from state to state) are about distributing wealth among one’s descendants.

To answer the OP: I have a law degree, but zero practical experience yet, and so I have no idea how common this sort of arrangement is. It is definitely possible under most states’ laws, though, and in some states it’s the default situation when someone dies intestate.

7

My understanding is that currently if:

Daughter Dies Before Father: Half of the money goes to Son, and half goes to Daughter’s kids in the form of the trust.

Father Dies Before Son: Half goes to Son’s wife, and half goes to Daughter.

Daughters wants to change it to:

Father Dies Before Son: All goes to daughter.

In principle I agree with the daughter. Inheritances in general goes to the closest surviving blood relative (excepting married couples). That’s what I understand the tradition to be. However, Father always has the prerogative to provide for anyone in his will. If Son’s death would have a large impact on Son’s Wife financially, I don’t see a problem with Father giving her half his inheritance.

8

IANAL, but I think that Son’s share should go to Son’s Wife in the event he predeceases his dad and his dad has not made a new will, and that this should be the case whether he’s been married to her for 40 years or 40 minutes. She’s his (Son’s) family just as Daughter’s children are (unless of course they signed a prenup) and this should be the case even if she remarries between his death and Dad’s death.
Of course I may be prejudiced as I’m actually having an almost identical problem as I write this. I’m heir to 1/3 of my mother’s estate (she died intestate). My siblings are both married, one with children and the other without, and her biggest asset (the house) has yet to be sold. In the event I should predecease them I DO NOT WANT my third to be split among them- I’d rather it go to a friend of mine or to a charity for the prevention of toxic spaghetti or just about anybody other than them, and I have a will stating this. OTOH, if either of them should predecease me then I would certainly acknowledge the right of their spouse/children to inherit their portion of the estate. (More than any of the above I’d prefer to live.)

It’s actually slightly similar to the Buddy Holly estate. When Buddy Holly died his wife was pregnant with their only child; soon after the funeral she had a miscarriage, so there were no children. She was still his legal wife/widow, however. A few years after Buddy’s death his widow remarried and had several children with her second husband. Even though Buddy Holly had blood relatives (including his parents and his siblings), his widow and presumably her second husband and her children by said husband continued to benefit from her first husband’s catalog (ultimately sold to Paul McCartney) and from his image/life-story rights/etc… Legally these “posthumous stepchildren” are no relation to Holly, but I think that it’s only fair his widow should receive her share of his estate whether she spent the rest of her life in widow’s weeds staring at his death mask or whether she remarried 13 times- they were legally married and not separated or in the process of divorce when he died.

(Of course the case of Peter Sellers was unfair to his children: his much younger widow inherited almost everything even though they were legally separated and about to divorce- he even had an appointment to sign a new will but died of a heart attack before making it there- but in that case I think the state of the marriage should have been considered.)

9

But - if the son predeceases his father, he never owned any share of his father’s money. How his half of his father’s estate would be distributed, if the will stands as currently written, is likely a matter of how the law in their state handles such things. I’m not certain it would automatically go to the son’s heir (spouse, or whomever he left his money to).

In your situation though, you already own that third of the estate. It’s now your property, even though the estate isn’t formally sorted out yet. Therefore, whatever you’re entitled to, is already yours and would go wherever you wish it to go.

10

From what I recall of my own Trusts and Estates classes in law school, Campion is correct (and so is jakelope).

Under intestate succession (if the Father had died without a will), if the Son predeceased Father, the Son’s widow would get bupkis. This is largely because an expectation of inheritance (such as Son’s current expectation of inheriting half Father’s estate) isn’t considered alienable property (property whose ownership can change hands) for purposes of Son’s estate.

So, in general, and absent any weird situation caused by poor will-drafting (or odd specific request of the testator), if the Son dies before Father (and without children of his own), Daughter will inherit the whole bit.

In other words, I think Daughter was correct (still possibly greedy, but correct in stating that Son’s concept of how the estate would be divided is not how it is typically done in that situation).

Incidentally, it was questions like this one that made me swear never to practice T&E law.

/edit Sampiro, in your situation, your mother has predeceased you - if you die, then your one-third interest in her estate will pass under the terms of any Last Will and Testament you have in force. If you have no will in force at this time, then it passes in equal parts to your siblings. So, if you don’t want them to get your share, have a will drawn up according to the laws of your state designating who you would like to receive your assets.

11

When my wife and I croak, assuming there’s anything left, we would want it split evenly between our two children. If one or both of them should predecease us, then to their surviving spouse in trust for the grandkids, unless the grandkids are over 21, then directly to them.

12

If that is true, than that would strike me as an unusual and poorly written will. I suspect a word or 2 may have been omitted in the retelling, such as “surviving”, “heirs and assigns”, etc. that might clear things up.

I know if one of my kids expressed displeasure over the way I had drafted my will, I’d be happy to accomodate them and rewite things - to write their greedy ass out of the will!

I always get amused at people who develop firm ideas about how they think someone else ought to distribute their property. But don’t take my advice - I’m just a crappy lawyer with a bad attitude who didn’t pay attention during law school! :wink:

13

I think if the son dies first, the ENTIRE estate should go to the daughter. If the daughter dies first, her 1/2 should go to her children. Spouses should not benefit.

My parents had to figure all this out when doing their wills. There are three children. The problem was that my sister does not have any children of her own. So the question was, what to do if she predeceases my parents? They decided that it would not go to her spouse but back into the estate to be divided between my brother and I. If we predecease my parents, our share would go to our kids. Sissy didn’t seem to think this was unreasonable at all.

14

I wonder how many of us are going through issues of inheritance right now.

Had my husband not survived his father (who was some years ago legally declared incompetent and thus not able to rewrite his Will) all of my husband’s share would have passed onto a family no longer “his”.

The Will stated that should my husband pass first, his share would go the children of his then wife. Her daughters have had no contact with my husband (or their “Grandfather”) for several years, yet they would have inherited fully.

My husband has outlived his father so it is a moot point now, but I often wondered whether the statement “to my son’s wife’s children” could have been open to debate. The wife was unnamed, but the daughters were named. They are divorced, so she is no longer his wife but that could have been the smaller point in favour of the daughters being specifically named.

15

But this isn’t an “almost identical problem.” In the OP’s case, the Father is alive; until he kicks off, the money is his and he can leave it to whomever he wants. The daughter is correct that the will should say who gets Son’s share if Son dies before Father and then Father dies – doesn’t matter to me who gets it, but the will should say. And that is Father’s decision, because it is Father’s money, and will be until he dies.

In your case, your mother has passed away. You are entitled to your share of her estate. Even though the house has not yet been sold, your interest in it, left to you by your mother, belongs to you. Right now, and fully. You can leave it to whoever the hell you want, just draft a will that says so.

So you are not in Son’s Wife’s position; you are in Father’s position. You have an estate, and you can leave it to whomever you want.

But if Father’s intention was to leave Son’s share to Son’s wife in the event Son predeceases Father and then Father dies, then Father needs to go back to his lawyer and make sure that’s what the will says, because that is NOT how it is generally done.

Son’s Wife’s marriage to Son does not make her an heir to Father. It makes her an heir to Son, but if Father is still alive at the time of Son’s death, she only inherits whatever Son had – which would not include any part of Father’s estate, because it belongs to Father until he dies.

16

In my limited experience, this sort of thinking is common. Two kids, brother and sister, expect to each receive half of their parents’ estate. There is a tendency to think of that expectation as “mine,” or “my share,” even though it is only an expectation. Each of them actually owns or has nothing. Their expectation is reasonable because they are heirs to their parents, but it still is only an expectation of what might (probably will) happen later, when their parents die. But if the child dies first, that expectation evaporates. The estate will be split among living heirs, be they children or grandchildren.

But just because your child gets married, that doesn’t make their spouse your child. Since they are not your child, they are not your heir. So unless you explicitly make your daughter-in-law / son-in-law an heir, he or she is not entitled to any share of your estate – regardless of whether their spouse (your son or daughter) has died or not. Even if the son/daughter is still living, the estate share goes to him or her as heir, not to his or her spouse.

17

In my State, the rules work the way jackelope has laid out. When my uncle died, my Granparents re-wrote their will to ensure that his kids were not left out of the inheritance. Both of them get 1/8th share (because their dad was one of 4 kids).

While it seems kind of unfair in the face of it (why do my cousins get $ and I get bupkis?), it actually is the “most fair” to those grandkids.

Eli

18

When we were doing our trust, our attorney advised us to take every eventuality into account. Unless I’m mistaken, the will or trust can be written so that it does not have to be redone on the death of a child, assuming that this is an eventuality spelled out in the will.

For the opinion part, I don’t think it matters one bit what is typically done. What the relationship of the Father to the Son’s wife? I can see that in some cases he wouldn’t want her to get a penny, and in some he’d want her to get the Son’s full share. Is the will written to take possible children from this marriage into account? How about if they get divorced before the Father dies?

Our trust does out a percentage of our estate to our kids depending on their ages, so that they wouldn’t get all of it when they turned 18. (They’re now over 21, so no issue.) We were paying good money for the trust, so we wanted our money’s worth!

So, what does the Father want?

19

Problems like these are the reason I heartily endorse my parent’s decision to spend every last penny before they die.

20

I think that Daughter is correct about the way it’s typically done (Father can, of course, specify differently if that’s what he wants). I had my will prepared through a legal plan provided by my union. Since it was so inexpensive, it did not involve meeting with a lawyer, just filling out sort of a questionnaire. For some parts, there was a default provision. If I wanted a different provision, I had to specify what I wanted. One of the default provisions was that my estate goes to “my issue, per stirpes”. If it were more common to leave a predeceased child’s share to whoever the child’s heir might be ( kids, spouse or friend), then that would have been the default provision.