Who Inherits

[#2clifton]

What is the name of your state? Property in question is in North Carolina. My Father passed away in the beginning of this year (2019). My Mother was the sole beneficiary of his estate. In the will we the children are named but no spouses or grandchildren. If one of us children predeceases my Mother, when my Mother passes does other child inherit everything? Or, does the child's family automatically inherit their share?

 

[LdiJ]

What is the name of your state? Property in question is in North Carolina. My Father passed away in the beginning of this year (2019). My Mother was the sole beneficiary of his estate. In the will we the children are named but no spouses or grandchildren. If one of us children predeceases my Mother, when my Mother passes does other child inherit everything? Or, does the child's family automatically inherit their share?

Are you talking about your mother's will? If you are talking about your father's will it no longer controls because everything belongs to your mother now.

If your mother's will contains the term "per stirpes" then that would indicate that if one of her children are deceased that that child's share of the estate would go to that child's children (not their spouse).

 

[Zigner]

What is the name of your state? Property in question is in North Carolina. My Father passed away in the beginning of this year (2019). My Mother was the sole beneficiary of his estate. In the will we the children are named but no spouses or grandchildren. If one of us children predeceases my Mother, when my Mother passes does other child inherit everything? Or, does the child's family automatically inherit their share?

If your mother is the "sole beneficiary of his estate", then nobody else inherits from the estate.

 

[#2clifton]

Are you talking about your mother's will? If you are talking about your father's will it no longer controls because everything belongs to your mother now.

If your mother's will contains the term "per stirpes" then that would indicate that if one of her children are deceased that that child's share of the estate would go to that child's children (not their spouse).

It does not have that wording, just our names and the words "share and share alike". And yes, I know my Dad's will no longer controls, my Mom's does that's why I am asking.

 

[#2clifton]

If your mother is the "sole beneficiary of his estate", then nobody else inherits from the estate.

I understand that, asking after she passes and if one of the children predecesses her, what happens? Does the spouse and children of the deceased child inherit or does everything go to the remaining living children only.

 

[Zigner]

I understand that, asking after she passes and if one of the children predecesses her, what happens? Does the spouse and children of the deceased child inherit or does everything go to the remaining living children only.

Perhaps you ought to ask mom to clarify - she might not even be aware of it.

 

[#2clifton]

Perhaps you ought to ask mom to clarify - she might not even be aware of it.

She is. We are trying to figure out if she needs to do a new will, amend this one or just leave as is.

 

[LdiJ]

She is. We are trying to figure out if she needs to do a new will, amend this one or just leave as is.

It all depends on what your mother wants. If she wants the grandchildren to inherit if their parent predeceases her then she should change it or amend it. If she doesn't want that, then she should leave it as it is.

 

[PayrollHRGuy]

It does not have that wording, just our names and the words "share and share alike". And yes, I know my Dad's will no longer controls, my Mom's does that's why I am asking.

I understand that, asking after she passes and if one of the children predecesses her, what happens? Does the spouse and children of the deceased child inherit or does everything go to the remaining living children only.

Does your mother have a will? Have you read it? What was written in your father's will means nothing now.

 

[#2clifton]

It all depends on what your mother wants. If she wants the grandchildren to inherit if their parent predeceases her then she should change it or amend it. If she doesn't want that, then she should leave it as it is.

That is what I thought. This helps in making the decision on what to do. I didn't want to tell her the wrong thing.

 

[Taxing Matters]

It all depends on what your mother wants. If she wants the grandchildren to inherit if their parent predeceases her then she should change it or amend it. If she doesn't want that, then she should leave it as it is.

It does matter what the mother wants, but in NC it is the other way around: if she wants the descendants of the child who died before her to inherit, she likely need not do a codicil (amendment) to the will or execute a new will. That is because NC has an anti lapse statute that specifically states that unless a contrary intent is specified in the will, when a gift in a will is made to a grandparent of the testator or any descendant of a grandparent and that person dies before the testator does, then the gift to that deceased relative does not lapse but instead the deceased relative's issue (i.e. children, grandchilden, etc) stand in place to receive the gift using the rules of intestacy to sort out how much each of the issue gets. See NC General Statute § 31-42. A number of other states also have anti-lapse statutes, but the provisions of them vary significantly. NC's statute is one of the broadest anti-lapse statute I've seen. Pretty much it says that if you make a gift to most any relative and that relative dies before you do that deceased relative's kids, grandkids, etc., will divide up the gift that relative was supposed to get.

If the mother does not want the kids of a child who dies before her to inherit that child's share, she needs to make that clear in the will. So if she wants the other kid to get it all, or wants the spouse of the child who predeceased her to get that child's share, or something else, she needs to specify that in her will.

It may be a good idea for the mother to see an estate planning attorney to review the present will and her goals to ensure she'll have a will that does what she wants.

 

[TrustUser]

hi tm,

i am not much into wills, but if the laws should change between when the will is drawn up, and when the testator dies, wont there be a problem if you simple use defaults ?

if i was gonna use a will, i would write specifically what i want, and not hope that the same defaults exist, when i die

 

[Taxing Matters]

hi tm,

i am not much into wills, but if the laws should change between when the will is drawn up, and when the testator dies, wont there be a problem if you simple use defaults ?

Any time the law on wills changes there is the possibility that an existing will may be impacted. That's why people should check with a lawyer every few years to ensure there hasn't been a change they need to know about. That said, the law of will does not change all that often in most states. I provide updates to clients when any significant law change occurs that would impact a will I've drafted for them. I don't have to do that all that often, though.

By the way, the same is true for trusts. If the law on trusts changes, that may impact current trusts. So it's a good idea to review your trust documents periodically, too.

if i was gonna use a will, i would write specifically what i want, and not hope that the same defaults exist, when i die

When I draft wills for clients I make sure that all the various alternative distributions are clearly spelled out. The anti-lapse statute in my state is oddly drafted and not one that I would leave to chance. The NC provision is more clearly drafted. If the OP's mother was going in to have a fresh will done anyway I'd say to make sure that all the alternative options are spelled out. But if the current will she has does reflect what she wants given what the anti-lapse statute says then there is really no need to scrap it and pay a lawyer to do a new one.

 

[TrustUser]

it is my intention not to have anything in my trust that can revert back to "trust law defaults". that doesnt mean i couldnt have overlooked something !!