Citrus Heights, CA asked in Estate Planning and Probate for California

Q: Beneficiary passed away while estate taxes were being paid

I am executor of my father's estate. Most of the money has been dispersed and now that the taxes have been settled, the remainder can be given to the beneficiaries. My brother who is a beneficiary, passed away after the initial funds were distributed. My father's will reads that if any of his children pass before the money has been sent out, their children are to receive the amount. My brother had three children and two are estranged. My nephew states that my brother's will reads that he is to get all of his portion of the rest of our dad's estate. I have no reason to doubt him, but I haven't seen my brother's will.

As the executor of my father's will, does it take precedence or does my brother's? I believe my father's does but I want to make sure. I may have a difficult time finding and/or contacting my brother's estranged children. If it makes any difference my brother was the co-executor of my father's estate and when my brother passed away, it left me as sole executor.

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1 Lawyer Answer
Nina Whitehurst
Nina Whitehurst
  • Estate Planning Lawyer
  • Crossville, TN
  • Licensed in California

A: Your question cannot be answered without reviewing your father's will. One thing is certain - you should not take your nephew's word for what your brother's will says. You first need advice on whether there really is a provision in your father's will for who is to take your brother's share in the event he passed prior to distribution (that is a bit unusual). Most likely your brother's share will go to your brother's estate. If that is the case, then someone needs to open a probate for your brother's estate and you would distribute your brother's share to the executor appointed in that case. That executor of your brother's estate would then distribute your brother's share according to your brother's will, if he has a will that is accepted by the probate court.

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