The Bronx, NY asked in Family Law, Estate Planning and Probate for New York

Q: PR, what happens when a beneficiary included in a Will is deceased but has a surviving spouse and children?

My grandparents passed away and left a Will where all grandchildren are beneficiaries. My grandparents' children are deceased. The house is up for sale. There are six grandchildren, of which one is deceased, but has a living spouse and two children. We are unable to locate them to inform them. So, will the surviving spouse be the beneficiary or the deceased children, and what will happen if they cannot be found when the house is sold? Thank you

1 Lawyer Answer
Marco Caviglia
Marco Caviglia
  • Probate Lawyer
  • Lagrangeville, NY
  • Licensed in New York

A: Distribution of assets down the lineage to classes of beneficiaries depends upon the specific wording of the Will, which must be reviewed, as a determination of whether the testator's intent was that the estate assets were to pass down the lineage by per stirpes or per capita must be made. If a testator intends distribution per stirpes, then the shares would pass down to the children equally, but if they predeceased the testator, the grandchildren each takes the share that the parent would have taken, and if there is more than one living grandchild of a parent, they split the parent's share equally yet again. If one of the grandchildren has also predeceased, that grandchild's children (the great grandchildren} take equal fractions of what the grandchild (their parent) would have taken.

In contrast, If the intent was per capita distribution, then once the child(ren) of the testator predeceased, that share disappears and is not passed on down. Instead, it is added in the corpus of the assets left to the surviving children. If there are no surviving children, then the structure of the Will must be looked at to determine who gets the assets. Also, depending upon the ages of the great grandchildren, there might be a trust created if any is an infant. As you can see, an attorney must necessarily be consulted to determine which one was the intent of the testator, and to then determine who other beneficiaries arise if all the intended children of the testator are deceased, and whether a resultant trust could or must result. Consult an attorney.

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