Analysis please

[mrs sankofa]

What is the name of your state (only U.S. law)? AL

There is some confusion arising about a clause or paragraph stated in a Will of a family member. Could someone give an analysis of what may be the outcome of this? Will was made in 1989.

The testator gave, devised and bequeathed 1/2 of her estate be held and managed by her executor for the use and benefit of her brother for so long as the said brother lived. She asked that the brother be paid $200.00 a month from a Trust. She also stated that if her brother is not living at the time of her death, or upon his death, such share, or any remaining portion thereof, shall be distributed to her nieces, xxx and xxx, share and share alike.

The brother died in 1997. One of the nieces died in 2001. The Testator died in May, 2009. So no monies were ever administered to the brother.

Will the one niece get the uncle's share since he died and the other niece's share too? Doesn't it depend if this same Trust exists?

 

[anteater]

From what you have stated, you are only talking about 1/2 of the estate. Also, it appears that there was no trust set up during the testator's lifetime, but the will provided for the creation of a trust upon the testator's death, but only if the brother survived the testator.

If the brother did not survive the testator, then 1/2 of the estate would be divided between the testator's nieces. Since one of those nieces did not survive the testator, then it seems to me that the devise to the deceased niece would be covered by Alabama's anti-lapse statute unless the will made some provision for one or both of the nieces predeceasing the testator:

Section 43-8-224

Anti-lapse provision; applicability to deceased devisees and to class gifts.

If a devisee who is a grandparent or a lineal descendant of a grandparent of the testator is dead at the time of execution of the will, fails to survive the testator, or is treated as if he predeceased the testator, the issue of the deceased devisee who survive the testator by five days take in place of the deceased devisee and if they are all of the same degree of kinship to the devisee they take equally, but if of unequal degree then those of more remote degree take by representation. One who would have been a devisee under a class gift if he had survived the testator is treated as a devisee for purposes of this section whether his death occurred before or after the execution of the will.

I assume that the will provided for what happens to the other 1/2 of the estate.

 

[mrs sankofa]

Yes; the other 1/2 went to the same two nieces and another set of nieces. So with one dying the same remaining niece that will inherit from the brother's part will inherit under the other 1/2 division too. The other 1/2 covered property, automobiles, minerals, etc.

Anti-lapse....umm....I'm trying to understand this...does this mean her share (the deceased niece) is opposed or automatically transfers to the other niece mentioned?

 

[anteater]

Anti-lapse....umm....I'm trying to understand this...does this mean her share (the deceased niece) is opposed or automatically transfers to the other niece mentioned?

In simple terms, did the predeceased niece have any kids/grandkids ("issue")? If so, "...the issue of the deceased devisee who survive the testator by five days take in place of the deceased devisee..."

 

[mrs sankofa]

anteater! I am so glad that you brought this question up regarding the predecease having any kids!! Because this is where the problem lies (the specific paragraph in the Will that is presenting a problem!)

The niece who passed away had one child. There is no mention in the first 1/2 of the estate that the child is excluded if the mother (niece) passes away. This paragraph states, "If my brother is not living at the time of my death, or upon his death, such share, or any remaining portion thereof, shall be distributed to my nieces, xxx and xxx, share and share alike."

The second 1/2 of the estate pertaining to the holdings like the real property, automobile, mineral rights, etc. does state that if any of the four nieces (two nieces were excluded from the first 1/2 of the estate where the brother was listed); is share and share alike but if any of said nieces are not living, "the share of such deceased beneficiary shall lapse and drop out, thereby increasing the shares of the other beneficiaries under this paragraph."

The heirs are assuming that the surviving niece is going to get more than the rest of them and that the niece's child will get nothing at all.

The niece's child did receive a form from the Probate Court to be notarized, but I don't know the name of the nature of the form as we are in different states. The Will took place in Al, however.

 

[anteater]

The administrator of the estate should have an attorney to consult with. And it certainly would not hurt the predeceased niece's child to have a consult with her own attorney.

But my interpretation would be:

The will provides clear direction for the "second 1/2 of the estate" if one of the beneficiaries does not survive the testator. Therefore, the will's provisions rule.

The will does not provide any direction for the "first 1/2 of the estate" if one of the two nieces does not survive the testator. Therefore, the Alabama anti-lapse statute is relevant for that portion of the estate.

The heirs are assuming that the surviving niece is going to get more than the rest of them..

Well, that seems inevitable. The surviving niece is entitled to at least 1/2 of the 1/2 of the estate that was earmarked for the brother's care. Plus 1/3 of the remainder of the estate. Unless that niece has a strong sense of equitability and wants to make some arrangement to have the surviving nieces' shares come out more or less equal.

 

[mrs sankofa]

This niece does have a strong sense of equitability and tried to make an agreement among the other two sisters to share and share alike any monies that she received over and above their share; however, she (the surviving niece) wanted to give atleast ten percent (10%) to the predeceased daughter. One of the other nieces refused to agree or disagree with her and stopped all conversation with the surviving niece. So, the outcome of that was to let the Personal Representative carry out the Will as it stands.

 

[mrs sankofa]

anteater,

Thank you for your analysis. It is indeed very helpful.

My query really was for the niece who has tried to make everything fair and equitable among her stepsisters (the other two nieces mentioned in the Will), but it seems one step sister doesn't want to share with the predeceased daughter and the other stepsister feels they are entitled to an extra share of the 1/3 agreement also. I would say greed is in place here. I thought she should just await the outcome of the Will and go from there.

Sorry I didn't place my quote in the box as neatly as yours.