If testator made a will leaving his estate to his 2 adult children and both children have children of their own and one of testator’s children dies, who is entitled to testator’s estate?

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If testator made a will leaving his estate to his 2 adult children and both children have children of their own and one of testator’s children dies, who is entitled to testator’s estate?

Asked on November 26, 2012 under Estate Planning, Alabama

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 8 years ago | Contributor

The answer to your question depends on how the will is written.  Most wills provide that assets be distributed "to child 1 and child 2 and then their descendants per stirpes."  It may also say "to child 1 and child 2.  If child 1 or child 2 fail to survive me, this gift shall pass to his or her descendants per stirpes." This type of language (to descendants per stirpes) means that the deceased child's share will be divided amongst that child's children.

The will could say "if child 1 or child 2 fail to survive me, their gift shall lapse."  This would mean that child 1 inherits everything.  Most wills do not say this.

The will could say "if child 1 fails to survive me, this gift shall pass to ________" and name a specific individual or individuals (or charity).

Finally, the will could say that the gift is given "to child 1 and child 2 or the survivor of them" or the gift is given "to child 1 and child 2 per capita."  This means that the surviving child would receive everything.  Wills are not usually written this way.

You need to read the will, but I bet that the deceased child's portion will pass to his or her children in equal shares.  That is the usual default method of writing a will.

It is important to consult a lawyer when preparing a will so that the testator fully understands his or her choices, the will carries out exactly what the testator wished, and the language is clear.  There are many choices when preparing a will, and most lay people do not understand language like "per stirpes" or even the consequences of waiving bond, appointing certain people as executor/personal representative, allowing compensation, etc.  It is well worth the small fee to have a lawyer prepare a document that will carry out the testator's wishes easily and without making changes every time a circumstance alters.


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