Medina, OH asked in Estate Planning and Family Law for Colorado

Q: When someone passes & "estate will"goes to X #of kids but 1 has passed what happens to the deceased kid's share?

The child that died had 1 child, does the deceased share go to his son or to the other siblings?

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1 Lawyer Answer
Ashley Dean Powell
Ashley Dean Powell
  • Estate Planning Lawyer
  • Licensed in Colorado

A: The answer somewhat depends on a variety of factors, such as whether the will intended a class gift (for example, "to all my kids") or was a list of specific devisees (recipients) of the gift. The specific provisions of the will (did it clarify alternative recipient or how to deal with the death of one of the recipients?) and the intent of the person who created the will are the key factors in determining who gets what whenever possible.

However, you may want to review Colorado Revised Statute Section 15-11-603, which may become the key law if the will does not state what should happen. In that case, the statute sets out default rules of construction, and in many situations the surviving child of the recipient who already died will receive the share that the deceased person would have received (based loosely on subsection (2)(a) or (2)(b)). Again, any language to the contrary in the will itself could trump this default statute. Additionally, as mentioned, there are many factors including the nature of the gift, nature of the recipients, and the nature of those who survive.

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