Asked in Estate Planning and Probate for New York

Q: beneficiary question

will reads I leave my estate to my children, if any, who survive me in equal shares, per stirpes - have received two different answers for what this means - the first lawyer I talked with stated that the estate would be divided between the three alive children and then the fourth share would be divided between the two nieces of a deceased child - the second lawyer stated that since the beneficiaries are my children if any who survive me it would be divided among the three living children only since per stirpes cannot be used to extend the beneficiaries from one generation to the next. That if the will would of read to my descendants that survive me it would of went according to the first lawyer but since it stated specifically children who survive me per stirpes would not apply.

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1 Lawyer Answer
Benjamin Z. Katz
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  • Estate Planning Lawyer
  • New York, NY
  • Licensed in New York

A: Since it conditions it upon surviving the maker of the Will, it would be be divided among the living children with no share will be given to the children of any child not living at the time of the maker's death. Per stirpes is inconsistent with the "who survive me" wording. That leads me to believe it was a poorly drafted Will. I suggest you engage an attorney to see if the inconsistency can be resolved. Otherwise, there will likely be a challenge to the Will.

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