If my father passed away before my grandfather, do my siblings and I have any rights?

My father isn’t listed in the Will as a child. However, it says heirs of his children get an equal share of the residual estate.

Asked on July 3, 2014 under Estate Planning, Indiana

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 6 years ago | Contributor

There are several things to consider here. First of all, a child can be disinherited by a parent. However, typically there should language of disinheritance in the Will itself, if not it could be argued that your grandfather forgot to mention your father in it. If the argument is successful (you would need to have this question decided by the court), you and your siblings could possibly share in an inheritance. However, what happens to a deceased benenficary's share (if in fact it is established that your father did have a legal right to a portion of the estate) depends on how the Will is written and applicable state law. Accordingly, if alternate beneficiaries were named, then your father's share would go to the person(s) so named, in this case to your grandfather's children or their heirs (i.e. you and your siblings).

Note: Even if an alternate benficiary was not named, then in virtually all states the gift to him would not fail or "lapse", rather it would go to you and your siblings.

The fact is that this area of the law can get complicated and so are the details of this case. Therefore, you should consult with a probate attorney in the area in which probate is to be opened. They can best advise you of your rights pursuant to state law after reviewing a copy of the Will.


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