Your will may provide how the estate should be distributed, if one of the legatees dies before you. If not, you can change your will to reflect how you want the estate divided, after the loss of your child.
The idea of a child dying before a parent is a heartbreaking thing to consider. However, these sad events do take place. The difficulty of discussing this might lead you away from thinking about it when doing your estate plan, but that’s not a productive response. The article “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?” from Carroll County Times tackles this topic without flinching.
First, review your will with your estate planning attorney to see if your will has already made a provision for this event. Your will should be reviewed from time to time anyway, especially when there has been a major tax law change. If there is nothing in your will currently addressing this situation, you can change the will to what you would want to happen.
If you don’t make this change and a child predeceases you, the laws of your state will govern what happens.
In Maryland, the law of the Estates and Trusts Code says that your child’s estate will still receive the share you had designed in your will, regardless of whether they died before you. Therefore, whoever is an heir to your child’s estate, will receive what your deceased child was awarded in your will.
The law also states that the legatee—your deceased child—must be identified in the will to receive whatever share of your estate you directed. If you don’t want to leave a portion of your estate to the heirs of your deceased son or daughter, you must specify exactly how you want your estate to be divided, if one of your children should die before you do.
Is it worth getting into these specifics? Yes. For one example, if you’ve had a bitter feud with a son-in-law for decades and you don’t want to leave him anything, then you’ll want to make sure to specify that in your will.
Each state has its own laws governing what occurs when an heir predeceases the parent. For example, in the past in Maryland, a legatee’s right to receive a share of the estate did not enjoy any protection, if he died before the author of the will. If the will did not contain specific directions on how that share should be distributed if the legatee died before the author of the will, the share simply remained in the estate, and the legatee’s heirs did not receive any assets.
Speak with a local estate planning attorney to clarify what would happen to your assets and what you would like to have happen.
Reference: Carroll County Times (Dec. 21, 2018) “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?”
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