If a beneficiary of a Will dies, are their childrenstill entitled to their share of the inheritance?

Recently, both my dad and aunt died. My father told us that my aunt had left us in her Will. While cleaning out my father’s room, I found a copy of a Will dated 08/10. It reads that my aunt is leaving my brothers and I $5000. Also, her house was to be left to my dad and his brother (my uncle). Now that my father has passed, can we his children claim what was supposed to be his? Also, should we bring a lawyer on the day the Will be be read?

Asked on December 16, 2010 under Estate Planning, California

Answers:

M.T.G., Member, New York Bar / FreeAdvice Contributing Attorney

Answered 9 years ago | Contributor

I am so sorry for your losses.  Did you find just a copy of your Aunt's Will?  Where is the original?  Keep the copy safe until you know.  First, did you Father die before or after your Aunt?  If he dies after then his share "vested" in him prior to his death.  If he dies before her then the Will should state what happens to the share of your Father should he pre-decease your Aunt.  Read the Will.  If is says that his share goes to his children (or his heirs per stirpes or something like that) then yes, you will share in his portion of your Aunt's estate. Now, did your Dad have a last Will and Testament?  If yes then his portion of your Aunt's estate that you can claim is governed by the Will.  If it is not specifically listed then it may come under the "rest, residue and remainder" portion of the Will, known as the "remainder clause."  If he did not have a Will then the intestacy statutes in your state apply.  I would go and seek legal advice on the matter.  Most states dispense with the actual formality of a reading of the Will but you should be prepared either way with advice.  Good luck.


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