Inheritance law question: death of named party prior to death of estate's owner?
March 15, 2012 8:35 AM   Subscribe

Inheritance law question: death of named party prior to death of estate's owner?

Here's the situation (in brief). I'd like to contact an outside lawyer, but I figured I'd try asking here as well to see what kinds of questions I could/should ask.

My grandmother is closing in on 90. My mother is terminally ill, and at this point it's anyone's guess who will pass first. My father is still alive, and in my mother's will, all of her assets go to him.

My grandmother has some property, cash, and life insurance. In her estate, her son is heir to 50%, my mother 35%, and myself and my siblings the other 15%. Her son is unmarried.

I understand that in most states, inheritances are considered non-marital property. So, my main question is, where does my mother's share go if my mother is no longer alive when my grandmother passes? And if my grandmother passes first, and the inheritance is considered non-marital property, does that go to her descendants on her death, or would they still consult her will?

Right now, my grandmother isn't aware enough of the situation to do anything about it. A trustee was appointed, and he seems to be of the thinking that her percentage should all go to my father. To the point where he doesn't seem to want to make any changes to the estate, and doesn't seem willing to listen to any sort of concern regarding the situation. He's sided with my father in the matter.

Personally, knowing my family history and how my grandmother felt, I believe she'd want for the estate to be shared among her grandchildren. Her son doesn't particularly care about money, but the way it's structured now he'll be more than set himself.

This has the potential to really blow the hell up in the family, and I'm not sure how to deal with it.
posted by anonymous to Law & Government (11 answers total) 1 user marked this as a favorite
It really depends on the specific wording of the will, as well as the laws in your jurisdiction. If you want a definitive answer, you need to take a copy of the will to an attorney who specializes in wills and estates, and even then, there may be an open question. But even if the answer is clearly in your favor, you and your siblings need to decide whether you're willing to sue the estate and litigate against your father, if it comes to that, because it may. Bottom line: this is an extremely complex legal question, and no one other than your attorney can even begin to give you an answer.
posted by decathecting at 8:46 AM on March 15, 2012

This is different on a state by state basis. The words you are looking for are lapse and anti-lapse and the word "predecease" might be helpful in Googling in terms of who gets what. But really, it all hinges on how the will is specifically worded.
posted by jessamyn at 8:51 AM on March 15, 2012

Do you know if your grandmother has a will or a trust? This is pretty important in terms of how long it will take to administer, what the rules are, etc. Most of the time a trust will have specific guidelines about how things get dispersed in the event that a beneficiary passes away after the trust was created.

But yes, everything will depend on what the document in question says and where you are located.
posted by Madamina at 9:05 AM on March 15, 2012

This will depend on the wording of the two wills and the state you're in. Definitely consult an attorney, bringing a copy of both wills. Two (of many) things to look for: specifics about pre-deceased heirs and per stirpes vs per capita distribution.

Since your mother's will leaves all of her assets to your father, that would generally override the "non-marital property" default rule (that is, she would die "testate" as opposed to "intestate," if you're looking for legal terminology).

Due to her incompetency, it is too late for your grandmother to redraft her will, but if your mother is still competent, then she may want to revise her will to specify that any money or property that is part of her estate by reason of inheritance from your grandmother would be divided among your siblings, with the remainder of the estate going to your father.
posted by melissasaurus at 9:14 AM on March 15, 2012

I am a trust / estate lawyer. Echoing Jessamyn - the outcome will be determined by the provisions of grandmother's will OR if no provision relating to lapse / anti-lapse to the statute in grandmother's state of residence that defines the default anti-lapse rule.

Only a lawyer versed in probate law in the jurisdiction of grandmother's residence can really answer this.
posted by BrooksCooper at 9:28 AM on March 15, 2012

Just to get things clear: this grandmother is your father's mother, right? Your paternal grandmother? And her will leaves 50% to her son, 35% to her daughter-in-law (your mom), and 15% to you grandchildren.

Do you have a copy of your grandmother's will available? There's a few possibilities here: one is that her will specifically lists 'secondary' heirs who would inheirit would have gone to a 'primary' heir (your mom) if that primary heir died before the estate holder (your grandmother). The will might specifically say who gets what would have gone to your mother, if she predeceases your grandmother. Another possibility is that the will does NOT list 'secondary' heirs, in which case ---- woo boy, you need to check with a lawyer.

If your grandmother dies first, your mother will inherit that 35% from your grandmother, which will in turn pass to her spouse (your father) on your mom's death, unless your mom's own will says otherwise. If your mother dies first, she won't inherit from your grandmother; either way, you and your siblings need to check with a lawyer as soon as possible, because without other heirs specified, the children will take precedence in your grandmother's estate (i.e., your father wins) and the spouse will take precedence in your mother's estate (your father again).
posted by easily confused at 9:29 AM on March 15, 2012

Just to get things clear: this grandmother is your father's mother, right

"Her son is unmarried. " - given the mention of marital property I think the unmarried son would be the OPs uncle not his/her father, making it the maternal grandmother.
posted by missmagenta at 9:36 AM on March 15, 2012

Wills very commonly address this. Another word you want to look for is "per stirpes." This would mean that the inheritance goes to the inheritors of the deceased inheritors, so that each "branch" of the family tree gets the same amount.

I suspect this will probably includes per stirpes language because it's already set up to give half to each of her children's families. If this is the case then in the event that your mother predeceases your grandmother -- which commonly would include cases where your mother dies up to thirty days after your grandmother -- you and your siblings would split 50%.

You'd have to see the will to be sure, of course.
posted by gerryblog at 9:57 AM on March 15, 2012

Rereading the question, I think you would probably have to consult a lawyer to be certain, but it would be unlikely to go to your father unless there were language in the will to specifically ensure that. "Inheritors of the deceased inheritors" in my earlier answer referred to children, not spouses.

I believe that in a typical inheritance situation your father would be passed over if the the language of the will is what you think it is and your mother did pass first.
posted by gerryblog at 10:02 AM on March 15, 2012

The question is confusing because OP mentions a "trustee". If there is a trust, then wills and probate and the like are not going to apply. But I wonder if he is thinking of a conservator.

At any rate, and as others have said, absent other directions in your grandmother's will or trust, your mother's share would go to her heirs or devisees if she died first. Heirs if your mother has no will, devisees if she does. If your mother has no will, in most states her share would go primarily to her spouse, either 100% or a specified percentage. That is probably where the "it should all go to my father" thought came from.

If she has a will, the people she specified would receive the money.
posted by megatherium at 6:02 PM on March 15, 2012

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