Do Grandchildren Get Some of the Estate If Their Dad Dies before Me?
It’s not that uncommon that a child dies before a parent. The question then arises about who gets that share. Is it the children of the decedent child (the will maker’s grandchildren), or do the will maker’s other children split the share of the decedent child?
Nj.com’s recent article entitled “Who gets this inheritance if a beneficiary dies?” explains that the language of the will itself governs what happens with each legatee’s share in the event one of the adult children dies before his or her parents.
Some wills divide the remainder among the will maker’s children who are still living. With this, the surviving siblings would receive the entire estate.
This is called “per capita,” which is a Latin phrase that translates literally to “by head.” In a per capita distribution, each designated legatee (beneficiary) receives an inheritance only if they’re living when the inheritance vests (at the will maker’s death).
If a legatee (beneficiary) dies before this, that legatee’s share is divided among the surviving named legatees. As a result, the children of the decedent legatee get nothing, unless they are specifically designated as legatees.
However, the more common approach is for a will to state: “I give, devise and bequeath my residuary estate to my descendants, per stirpes.”
Per stirpes is a Latin phrase that translates literally to “by roots” or “by branch.” A per stirpes distribution means that a legatee’s share passes to their lineal descendants if the legatee dies before the inheritance vests. Per stirpes effectively designates a class of legatees to receive estate property, rather than designating only specific individuals to inherit property.
Therefore, providing this language in the will means that if a child predeceases the testator and the predeceased child has surviving descendants, that predeceased child’s share will go to that predeceased child’s descendants … that would be the will maker’s grandchildren.
If a person dies without a will, under Louisiana law the deceased child’s children will effectively step into the shoes of the deceased child. This is called “representation” under the Louisiana Civil Code.
Ask an experienced estate planning attorney about how each of these designations would work in your specific situation, when you draft or update your will.
If you liked this article, “Do Grandchildren Get Some of the Estate If Their Dad Dies before Me?”, you may like these articles: Estate Planning when So Much Is Uncertain and How Long Is Probate? and Does Anyone Know Where Your Money Is? and Do Gifts Count Toward Estate Taxes?
Reference: nj.com (Oct. 28, 2021) “Who gets this inheritance if a beneficiary dies?”