Let’s say you had six brothers and sisters. All of your siblings were beneficiaries and were still living at the time your Dad’s will was made. However, three of your brothers died before your father passed away. Who gets the money?

In that case, would the children of the deceased siblings be entitled to their fathers’ shares of their grandfather’s estate? It depends.

What if that wasn’t what the father intended when he wrote the will. Instead, the money was to be divided equally between his remaining living children. Who’s right?

Nj.com’s recent article entitled “My father died. Who will get the share meant for a dead beneficiary?” says that it really depends on how the will was written by the deceased, who’s also known as the testator.

A will may state, “I give, devise, and bequeath my residuary estate to those of my children who survive me, in equal shares, and the descendants of a deceased child of mine, to take their parent’s share per stirpes.”

Per stirpes in a will means that the share of a deceased child will pass to the children of that deceased child in equal shares, if any. However, if nothing is stated in the will, then every state has law that interprets a lapse of a will provision. These are known as “anti-lapse” statutes.

The rule of lapse in Virginia provides that a distribution in a will fails for lack of a “taker” – that is, if the person who’s supposed to get the distribution — has died. But our “anti-lapse” statute provides that *the “lapse” doesn’t happen if the person who was supposed inherit was the grandparent, or the descendant of the grandparent, of the one who died. It goes instead that that person’s descendants.

If you are a resident of Arizona, that state’s anti-lapse statute applies, if a beneficiary under your will predeceases you. The anti-lapse statute would apply if the predeceasing beneficiary were your grandparent, a descendant of your grandparent, or your stepchild, who have at least one child who survives you. Therefore, if the anti-lapse statute were to apply, the child who survives you would effectively take your beneficiary’s place, and inherit the gift instead of the beneficiary.

Rather than wonder, wouldn’t it best to have all that spelled out correctly in your will or trust?  Talk to an experienced estate planning attorney if you have questions about wills and per stirpes designations. Otherwise, it is a family squabble waiting to happen.

Reference: nj.com (March 25, 2021) “My father died. Who will get the share meant for a dead beneficiary?”