You are not my lawyer, etc., and this probably varies from one state to the next, but anyway. . .
Some years ago, the father-in-law of a friend died. He was under the impression that since FIL had only two children, and one of them was already deceased, that his wife would get everything.
He found out shortly thereafter that, no, that would not be the case, as his SIL had two children, and in accordance with the will, SIL’s half would then be split between the two children.
OK, pretty simple situation, actually, and so far as I know there wasn’t any kind of family rancor over the will, but here’s the FQ:
Let’s say it omitted the explicit clause naming the daughters’ children as secondary beneficiaries, and it just said one half to my two daughters. Wouldn’t half then go to the deceased daughter’s estate, and then be distributed according to however that estate was decided—in which case, other daughter wouldn’t have received the whole shebang, anyway?
You will sometimes see a reference to “Per Stirpes”, which means by branch. For example, If the beneficiaries are 3 children each with 2 children and 1 child has died their 2 children will split 1/3. If one of those children died with 2 children, those kids would split 1/2 of 1/3.
And as the OP suggests, if the will is truly silent on how predeceased situations are to be handled, the established state-level law will control. Which does vary from state to state.
I believe that, traditionally, a “class gift” (a bequest to all members of a specific class – i.e., “all my children” or “all my grandchildren”) would be redistributed among the remaining members of the class.
I think that, traditionally, if you specified beneficiaries (e.g. “to my children, Bob and Jane”), then the share of the predeceased beneficiary is returned to the residuary estate.
But, in order to prevent the situation you’ve described, there have been statutes that provide that – at least where the named beneficiary is a direct descendant – the deceased beneficiary’s share is distributed to his beneficiaries (subject to certain kinship requirements). And, whether or not this rule would apply to class gifts is going to vary state by state.
What I find by google is that per stirpes means each child (assuming it’s “to my children per stirpes”) gets an equal share, even if they die and their share goes to their descendants, whereas the opposite per capita means it goes equally only to the surviving children. As mentioned, depends what the law assumes in that locale about a will that does not specify one or the other method. No need to specify who is a secondary beneficiary with per stirpes, indeed they may not yet exist when the will was drawn up.
This is just one reason why it is a good idea to get a real lawyer to help draft a will.
(There are also laws, IIRC, that specify who must get part of the estate and whether you can exclude them. Plus who gets what if there is no will. This is not a simple area of law, and plenty of legal effort has been spent on wills over the centuries.)
Not just a lawyer, but a real lawyer who knows estate law and probate well. I am one, and I still paid a fair chunk of change to get all estate planned. Well worth it for me and my family.
Yeah, those laws can be weird, but I guess they can also make sense for most people. My father-in-law died about a year ago, and his will named his two children as devisees. But he lived in a state where you cannot disinherit your spouse. He had been separated from his last wife for something like 10 years, but they’d never gotten divorced. So, she’s getting an equal share of the estate.
My spouse and her brother are getting most of his assets though, because they were designated as beneficiaries on his accounts, which means they pass outside of probate.
As I recall, you are Canadian, and we don’t really have laws regarding who gets what exactly in any province. What we have is a lot of legal precedents, which effectively perform the same function.
See, for example, Tataryn v. Tataryn Estate, [1994] 2 SCR 807. The court held that Mr. Tataryn (the decedent) had a moral obligation to his wife that went beyond a simple life estate in the family home (which is all she was left in the will), and that both of his sons (not just one who got everything, as Mr. Tataryn stated in his will) had an equal share in his estate, but not a large one. The bulk of the estate went to Mrs. Tataryn under the “moral obligation” principle. Subsequent similar matters have followed the Tataryn precedent.
It is true, however, that there are intestacy laws in all provinces; which dictate how to dispose of property belonging to a decedent who has not left a will. Typically, property goes to a spouse, or lacking a spouse, to the next of kin, if a person dies intestate. That beneficiary can then distribute the property among other family members and friends as he or she chooses (or not).
Excluding someone from a will can be done, but you generally have to give a reason. You cannot just say, “To my son Robert, I leave nothing.” Robert can contest that. It is better to say, “To my son Robert, I leave nothing, since after putting him through college and letting him live at my place while he was often unemployed for the next twenty years, I consider that he has already got his inheritance.” Or whatever other reasonable reason applies.
You are correct that wills and estates are not simple. They can get extremely complicated, and unless your will is of the “I leave everything to my spouse” variety, which can be taken care of by a DIY will kit, it’s best to have a lawyer draft it for you. Such a professional can advise on what probate courts will be fine with, what they won’t be fine with, how to establish trusts for minor children, and even how to “leave all to spouse, except for my Remington rifle, which I leave to my hunting buddy Bob.”
Oh, and how to leave all to your cat. Yes, that can be done. For real
ETA: IAAL, but I am not your (speaking to all SDMBers) lawyer. This is not legal advice; it is meant to be informational. For professional legal advice in your jurisdiction, consult a local lawyer.
interesting - the crux of the matter was that Mr. Taratyn for whatever reason did not want son J to get everything, so left it all to son E with his wife getting the right to live in the matrimonial home and E got to manage the trust to give her whatever he thought she needed.
The appeal court said “no, if they’d been divorced, he would have been morally obligated to give her a decent amount, and arbitrary management of a trust fund does not guarantee the same morally obligation.” OTOH the sons only got a $10,000 gift, since the court said moral obligation to adult sons was a lot less.
Oddly, the court did say how the estate (two houses) was to be split among the sons on her death. I suppose a major point about wills is you cannot dictate what someone else wills when you die first. Tataryn was worried if he left it all to his wife, she’d give part of the estate to J. (He must have had a real beef with J). hence leaving it all to E with trusts. His will cannot say “My wife gets it all but she cant give any to J.” Once it becomes her property, he has no further say.
(My boss mentined this to me once. He had adult children, his second wife also had adult children; he wanted her to have the assets when he died, but wondered if he could be sure his kids got their fair share of what was essentially assets that he brought into the late-in-life marriage if she died last. In the end, all he could do is have them both sign letters of intent to go with the will. He could not stop her if she changed her will after he died.)
What his will and the courts or an estate planner can do, is put part the estate (i.e. the matrimonial house, other assets) in a trust with the wife having certain rights (living in house) and dictate how it was disposed of when she died. It seems Tataryn went wrong (among other things) mainly by giving E total discretion on any money his wife would get.
Which brings up the whole “no perpetual trusts” rule that makes laws so much fun and you should ask a real lawyer to explain when you have a free weekend or several.
All with the warning as Spoons points out, that the courts could come along and second-guess you if your lawyer is not careful.
I’m in my early sixties, and I got a will and other documents put together last year. I left a chunk of my estate to be split among my siblings. The lawyer asked what happens if one or more siblings die before me, and I hadn’t even thought about it. The lawyer said, “that’s why I’m here.” The proper language was put into the will document to specifically address this.
One thing to keep in mind with leaving everything to the spouse is that the couple may die together. Since they are together all the time, something like a car accident may cause both people to die at the same time. That can happen with any beneficiary, but it’s going to be more likely with someone you’re with nearly 100% of the time. So if you leave everything to your spouse, be sure to have a conditional beneficiary in case your spouse has predeceased you. And that’s also good so that you don’t have to update your will after your spouse passes away from whatever reason. For example, “I leave everything to my spouse. In the event they are not able nor willing to accept the inheritance, I leave everything to the SDMB”.
I recall reading about some common law rule where if the order of death of two people is indeterminable, it is assumed that whoever is older died first for purposes of inheritance. My wife is six months older than me, so under that rule if our bodies were pulled together from some burning wreckage, it would be assumed that I got all her stuff for a second, and it would now pass to my heirs (the SDMB, of course), but if I was older, it would pass to her heirs and the SDMB would get nothing.
I believe that, at common law, there was no presumption at all. It was a factual question that was supposed to be resolved by the probate court.
But that’s been altered in numerous ways in different countries at different times.
In England, under the 1925 Property Act, the younger was presumed to have survived the elder.
In other jurisdictions (e.g., the German Civil Code), there is a presumption of simultaneous death (and neither inherits from the other at all).
Under the Napoleonic Code: if both parties were between fifteen and sixty, the male was presumed to have survived and, if both the same sex, the younger was presumed to have survived.
Most US states have adopted in the Uniform Simultaneous Death Act, which provides, as a default, that, unless one person survives the other by 120 hours, each is viewed has having predeceased the other (which, as a practical matter, gives you the German rule, but with a cushion).
I have no idea whether any of those are still the laws in their respective jurisdiction. But, it likely depends on where the person lives (and whether the law has changed), and, at least in the US, it’s going to depend on what the will says.
In fact, because something like a car accident could result in one person dying after the other in Intensive Care hours or days later, I read that some wills include a clause to the effect that “if spouse dies within X days/hours” of the person making the will then considered to have pre-deceased avoiding the complication of who died first.
I was involved in the OP’s situation once. Two people who were named as lesser heirs in a will had died. One had a child. Since there was no provision in the will for descendants, the kid got nothing. (The will was quite old and out of date. The two that died had themselves been children when it was written. In addition, the amount allotted was quite small by later standards. So it was no big loss.)
Moral 1: Update your will.
Moral 2: Make sure the lawyer puts in stuff for contingencies like this and others.
