Marion, VA asked in Estate Planning and Probate for Virginia

Q: How does the law apply when someone dies and a executor is named, then one of the heirs dies before the estate is

settled, what happens with the deceased heirs portion of the estate?

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3 Lawyer Answers
Nina Whitehurst
Nina Whitehurst
PREMIUM
Answered
  • Estate Planning Lawyer
  • Crossville, TN

A: Most likely the deceased heir’s share will become part of the deceased heir’s estate. However, the only way to know for certain is to review the first decedent’s will.

Richard Sternberg
Richard Sternberg
Answered
  • Estate Planning Lawyer
  • Potomac, MD
  • Licensed in Virginia

A: In Virginia, it may definitely matter if the personal representative is an executor or an administrator, because the executor is appointed by a will, while the administrator (unless a administrator c.t.a.) administers an intestate estate. State law presumes that a post-deceased heir in intestate succession takes through his or her heirs or beneficiaries, per stirpes, while wills often reverse that presumption, and the expressed intent of the testator is conclusive. You might want to determine how the law applies to your facts by setting up a consult and reviewing those facts with a competent, Virginia lawyer. An inquiry on a website isn't going to get you useful information. If you cannot afford to consult counsel, try asking the executor.

Ross Cameron Hart agrees with this answer

Ross Cameron Hart
Ross Cameron Hart
Answered
  • Estate Planning Lawyer
  • Salem, VA
  • Licensed in Virginia

A: In addition to specific language - or lack of it - in a will, timing can be important.

If (as in your question) an heir dies after the original decedent, then the interest goes to the heirs of the deceased heir.

If, however, someone ('H') named in a will dies before the testator, then if 'H' is related to the testator ('descended from the grandparents of the testator') then H's heirs get H's share UNLESS the will says that H must survive Testator. If H is not a relative the share lapses UNLESS the will says to H's heirs.

This is why lawyers get the big bucks.

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