If Your Will Directs that Your Estate Be Divided Equally Between Children, and One of Them Dies Before You Do, How Will Your Assets be Divided After You Die?

If you fail to change your will, state law will step in.

The Carroll County Times recently published an article with this question: “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?” It notes that your will may direct the way in which the estate should be distributed, if one of the legatees dies before you. If not, you can modify your will to reflect how you want the estate divided, after the loss of your child.

As an example, the Maryland Estate and Trusts Code says “[u]nless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator.”

This means your child’s estate will receive the share you designated in your will, if that child predeceases you. Whoever inherits the child’s estate, will receive what the deceased child is awarded in the will.

The law in Maryland says that the legatee (the deceased child) has to be specifically named in the will to get whatever share of your estate you directed. The law also points out that if you don’t want to leave part of your estate to the individuals who would inherit from your deceased son or daughter, you must specify how you want your estate divided, if one of your children dies before you.

It might be worth making that legal specification in your estate plan, if you and your daughter in-law have hated each other for 20 years, and you don’t want her to inherit the money or other assets that would have gone to your deceased son.

In early Maryland history, a legatee’s right to receive a share of the estate was not protected, if he died before the author of the will. If the will didn’t have instructions as to how the share should be distributed, if the legatee died before the author, then the share remained in the estate—the deceased legatee’s heirs received nothing.

The common law rule that effectively cut off the deceased legatee’s heirs was modified by an anti-lapse statute adopted in 1810. This transferred the deceased legatee’s share to the persons who shared in his estate according to her will, or, if she left no will, those who shared in her estate under law.

When a legatee doesn’t survive the author of the will by 30 days, state law typically treats this as if that legatee had predeceased the will’s author.

Reference: The Carroll County Times (December 21, 2018) “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?”

Suggested Key Terms: Estate Planning Lawyer, Wills, Inheritance, Intestacy

About the author

Bob Brumfield

Attorney Bob Brumfield has been practicing law since 1984 and regularly receives the “Top Lawyers in California” award as well as the “Client Distinction” and “Client Champion” awards from Martindale-Hubbell.

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