Leaving estate to my siblings & their children

[wordinedgewise]

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

I am single, no children, parents deceased.
I would like to leave my estate to my 3 siblings in equal shares.
Two of my siblings have 2 children each, and one sibling has no children.

QUESTION 1:
If the sibling with no children predeceases me, can I assume that his share would go to the other 2 surving siblings, if I indicate distribution "per stirpes"?

If one of the siblings with children predeceases me, I would still like for their children (niece & nephew) to have their parent's share, which I think I understand that "per stirpes" would indicate, right?

QUESTION 2:
Nieces & nephews range in age from 18-34, so they are old enough to appreciate some tangible items also.
So, can I use "per stirpes" to indicate the distribution beneficiaries in the clause regarding Tangible Personal Property (ie. jewelry, car, furniture, etc.)?
Or some other legal wording?

Thanks!

 

[anteater]

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

QUESTION 1:
If the sibling with no children predeceases me, can I assume that his share would go to the other 2 surving siblings, if I indicate distribution "per stirpes"?

It isn't the magic per stirpes words that would cause a bequest to a predeceased, childless beneficiary to eventually go to your other siblings. Per stirpes indicates that you are making bequests to the branches of the family tree that your named beneficiaries head. If one of those beneficiaries predeceases you, that beneficiary's descendants stand in the beneficiary's place.

If the predeceased beneficiary has no descendants, then, in the absence of other language in the will, the bequest fails and becomes part of the residual estate.

§ 64.1-65.1. How devises and bequests that fail, etc., to pass.

A. Unless a contrary intention appears by the will, and except as provided in § 64.1-64.1, if a devise or bequest other than a residuary devise or bequest fails for any reason, it shall become a part of the residue.

B. Unless a contrary intention appears by the will and except as provided in § 64.1-64.1, if the residue is devised or bequeathed to two or more persons and the share of one fails for any reason, such share shall pass to the other residuary devisees or legatees in proportion to their interests in the residue....

A well-written will will have a residuary clause that covers anything that falls through after specific bequests. Now, assuming that your residuary clause would basically say the same thing - split everything between my sibllings, per stirpes - the bequest to the predeceased, childless beneficiary would end up under the intestate succession statutes. And, in the situation you describe, it would be shared between your surviving siblings or their descendants.

Get this far? I would suggest that you spell out what you want to happen if one or more of the descendant-less siblings predeceases you.

Otherwise, your understanding seems to be correct.

But do you see why the advice usually is not to write your own or use forms unless you have the simplest of situations?

 

[wordinedgewise]

Thanks so much for your reply.

So, as to Question 2, regarding tangible personal property, would that pass the same way? If using "per stirpes", or some other wording recommended?
Or spell out my intentions like, "If A or B predeceases me, I wish for their surviving children to inherit their deceased parent's share". Would that be okay?

 

[anteater]

So, as to Question 2, regarding tangible personal property, would that pass the same way? If using "per stirpes", or some other wording recommended?

Yes, that should be OK.

Or spell out my intentions like, "If A or B predeceases me, I wish for their surviving children to inherit their deceased parent's share". Would that be okay?

You are coming close to asking what specific language to put in your will and that would not be appropriate here.

I will only say that the per stirpes language does what you are asking above. But you want to have some general language for the situation where any of the beneficiaries is predeceased and has no descendants. If you want your intentions to be carried out, you need to consider possible situations that you really don't want to contemplate.

 

[wordinedgewise]

you need to consider possible situations that you really don't want to contemplate.

What do you mean by that?
Example situations?

 

[anteater]

What do you mean by that?
Example situations?

OK. Unfortunately, children also pass away unexpectedly.

Or, less morbidly, maybe the childless sibling has or adopts children.

The point is that you don't want the contingencies in your will to assume that your beneficiaries' life situations will always be as they are today. You might not have the time or legal capacity to adjust your will if it becomes necessary.

 

[wordinedgewise]

Who are the survivors?

Ok - I see what you mean.

One more thing - in our mother's will it states regarding personal property (household items, jewelry, car) "to my children in equal shares, or all to the survivor of them surviving me."
She died 10 yrs. ago, all children still living, & this was never an issue, so I didn't really wonder what it meant.
Now I'm wondering what does "or all to the survivor of them surviving me" mean?

Also, if my childless sibling predeceased me, his spouse wouldn't inherit from me, would she? Wouldn't his share be split between the other 2 siblings?

Again, MANY THANKS!

 

[anteater]

One more thing - in our mother's will it states regarding personal property (household items, jewelry, car) "to my children in equal shares, or all to the survivor of them surviving me."
She died 10 yrs. ago, all children still living, & this was never an issue, so I didn't really wonder what it meant.
Now I'm wondering what does "or all to the survivor of them surviving me" mean?

I think that she was trying to say that only surviving children would share equally and, if there had been a situation where there was a disagreement, a court would probably interpret it that way. But it would be clearer if the first part read, "to my surviving children..." and/or the second part read, "or all to the survivors..."

Also, if my childless sibling predeceased me, his spouse wouldn't inherit from me, would she?

No. Only if you were to explicitly include her somehow.