What happens to a beneficiary’s share if the pre-decease the testator?

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What happens to a beneficiary’s share if the pre-decease the testator?

Our mother’s Will has the clause “I give and bequeath to my children who survive me per stirpes.” Unfortunately, 1 of 4 children predeceased our mother leaving 2 sons. We understand the meaning of per stirpes, that the estate is to be divided equally, but the wording of the clause is “my children who survive me”. Are we legally bound to give our deceased sibling’s share of the estate to the two sons, even though our sibling was not a “surviving” child of our mother, or can the estate be divided between the 3 surviving children?

Asked on June 7, 2014 under Estate Planning, Florida

Answers:

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

Answered 8 years ago | Contributor

I am so sorry for your loss.  Yes, you are legally bound to abide by your Mother's wishes.  And her wishes - by stating per stirpes -  is that her two grandsons are to receive their parent's share.  So you and the two other siblings each get 1/4 of the estate and your nephews each get 1/8 (or half each of their parent's share).  The "surviving" part is just a term of art in will drafting.  The key is the per stirpes. 


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