Q: Can grandchildren make a claim to their grandparents estate if their parent passed prior to the decedent?
My grandfather recently passed away. Without getting into discussions about what "should" have happened, just prior to his passing, my grandfather created a will and living trust. After he passed, one of my aunts claimed he had revoked that paperwork. Without a will, the property (primarily his home), was entered into probate. My father passed away some 20 years ago, and was one of four children (3 biological and one adopted, if it matters). The three surviving siblings have requested 1/3 each of the estate for themselves as part of the "negotiations," excluding any interest for my late father, my half-brother or myself. My uncle, as personal representative, suggested I need to petition the court.
A: I highly recommend that you contact a probate attorney. Without getting into all the possible permutations, these are the general rules. The living will/trust should control UNLESS it was validly repudiated prior to death (it sounds like this is in dispute). If no will exists (aka intestate), the standard rules are 1/2 to 1/3 to the surviving spouse and the remainder to the children of the deceased. Depending in which state your grandfather died, it is possible that your deceased father's interest passed to his surviving children (i.e. surviving grandchildren). There is no legal difference between biological and adopted children in regards to inheritance rights. In short, your uncle is correct, that you should contact an attorney and likely will need to petition into the probated estate.
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