Let’s say you had six brothers and sisters. All of your siblings were still living at the time your father made his will. However, three of your brothers died before your father passed away. In that case, would the children of the deceased siblings be entitled to their fathers’ shares of their grandfather’s estate? Yes, if the father utilized per stirpes designations in a will.
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 designations in a will mean 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.
For example, the Kansas anti-lapse statute (K.S.A. 59-615), is operative only when:
- The testator bequeaths or devises property to a beneficiary who’s a member of the class designated by the statute
- The specified beneficiary predeceases the testator and leaves issue who survive the testator and
- The testator doesn’t revoke or change his or her will as to the predeceased beneficiary.
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.
Talk to an experienced estate planning attorney if you have questions about using per stirpes designations in a will.
If you would like to learn more about beneficiary designations in a will, please visit our previous posts.
Reference: nj.com (March 25, 2021) “My father died. Who will get the share meant for a dead beneficiary?”
