Don’t need answer fast - just something that came to mind after a recent conversation…
You have a will, dividing your assets among 4 heirs. Simple, straightforward, because you fully expect to outlive them all. But one of the heirs dies before you and you don’t think to amend your will, then you die. Now what?
Does the deceased heir’s share go into his estate? To his spouse or kids? Or is it divided among the remaining 3 heirs, whether or not there were spouse and kids? Is it dependent upon state law? Is it left up to the executor?
I know of a couple of situations where this might come into play. Nothing that I can or should do anything about - neither case involves me. I’m not seeking legal advice. Just wondering if anyone has encountered a similar situation or is familiar with estate laws.
State law governs. And no will written by a professional would leave that topic unaddressed; it’d be called out specifically.
As you suggest common solutions are to give the early decedent’s share to their children (not spouse) (called per stirpes in the trade) or else to divide it equally among the surviving direct heirs.
OK - we have one daughter and she gets it all, so it wasn’t an issue for us. But I will verify that if she dies first, the grandkids will get it all. I vaguely recall discussing that with our lawyer. Thanks!
I worked for an estate planning attorney, but it was years ago. It has also been awhile since we made out our own will and trust. But LSLGuy is correct; this is a common thing and the most basic will will address this.
This demonstrates why it’s better for pros to draft wills than for people to DIY it.
My now-deceased first wife was an estate attorney. Though more on the will-writing side than the will-probating side. She had some great war stories about the horrific messes of wills folks brought in. And about epic probate fights over trivial sums of money. By and large, people are vicious shits when under pressure.
As a general comment for everyone reading though not necessarily the OP, I’ll also point out that most states’ laws on ambiguous / absent wills or clauses thereof were written in an era when everybody stayed married to one person their whole life and everyone had exactly two parents. Or at least when that was the cultural assumption.
There’s been some modernization in some states, but anyone with anything other than a Ward-and-June-Cleaver-style family really, really needs a professional will and all associated paperwork. Lest the well-intentioned State (or the viciously homophobic State) utterly upend your intended succession plans.
I would guess that the estate would be split into 3rds in that case. But what about the more complex case where the will has uneven percentage splits. If the splits were 50%, 30%, 15%, and 5%, then what would happen if one of the heirs died or didn’t want their share? My guess is that the leftover share would be split among the other heirs in some proportion to what their original split was. That seems like the fairest solution. If the 30% heir was gone, then the split of that share might be:
50% heir gets 50/70th of the 30%
15% heir gets 15/70th of the 30%
5% heir gets 5/70th of the 30%
The 70 comes from adding up the percentage split of the leftover heirs (50+15+5).
Yeah. It was early and I had a bad night. Cut a girl some slack…
I live in a state where one can write their own will and as long as it’s witnessed by 2 others, it’s valid. I started out thinking “How hard can it be?” then we made an appointment with an attorney who specialized in estate planning. She did our wills, powers of attorney, and she gave us a list of things to do/consider to make things go smoothly when we go (smoothly or not.) I consider it money well-spent.
Every will I’ve ever signed has been drafted by an experienced pro, and they all laid out these eventualities and provided instructions. So this is a second to the suggestion to rely on an expert.
I’m not an estate attorney by any means, but I think the default would be the opposite. If one of the heirs had died, that share would go tho their estate.
It’s a bit more complicated, because the estate is eventually wound up and no longer exists once all bequests are distributed. You don’t reopen the estate, dump it in, and then redistribute according to their original will.
The rule at common law is that, if the beneficiary predeceases the testator, and the will does not say what is to happen in that event (which, as others have pointed out, a well-drafted will does say) the bequest lapses and the property concerned forms part of the residue of the estate, and goes to whoever the residuary beneficiaries are.
But this can be varied by statute, and commonly is; you need to check the statutes of the jurisdiction in which the estate is administered. For example, a common provision of statute is that, if a testator leaves a gift to the testator’s child, and the child has already died but leaves a child or children of their own (the testator’s grandchildren), then the bequest does not lapse and the property concerned goes to the child/children of the deceased child.
