Deceased's will issue

[pioneer]

Ok, i have a friend who has a problem to do the will and splitting of assets of their late grandfather. I thought i would post the issue on here as to get some feedback from mutual people's opinions about this.

 

The man and his wife are both now deceased and they had 2 sons and 2 daughters, one of which died in an accident some years ago . Each of the siblings have a child of their own even the deceased one.

 

The question is now that the farther has died should the assets/money be split between the remaining living sons and daughters, or should they be split between the remaining living sons and daughters AND the child of the deceased because their parent in the tree is not there to receive their share.

 

I personally feel that the child that has not had parent around should have a share of the assets that would have normally gone to their deceased parent, and the fact that they have had a tougher than average start in life losing a parent early on and all the support and help that you would normally get with this.

 

comments and opinions on this are welcome.

[d0nnivain]

Your friend needs to consult an attorney.

 

The answer to your Q will turn on 2 legal concepts. First a well drafted Will contains instructions whether the assets are to be divided per capita (the living children split the inheritance & the grandchild gets nothing) or per stirpes (the stripe or line of succession inherits, kids step up to take parent's place). If the Will is silent, your State's laws of intestacy will govern.

 

It's actually not up to your friends. Their sole obligation is to see that the deceased last wishes as written are carried out. Any deviation from the written instructions in the Will subjects them to personal liability.

[pioneer]

Thanks, how do you think it should be split on a moral level?

[d0nnivain]

Thanks, how do you think it should be split on a moral level?

 

 

Doesn't matter how I drafted my will. What matters is that the executors follow the grandfather's wishes even if they would have made the other choice.

[carhill]

I personally feel that the child that has not had parent around should have a share of the assets that would have normally gone to their deceased parent, and the fact that they have had a tougher than average start in life losing a parent early on and all the support and help that you would normally get with this.

If the grandfather's will agrees with your feelings and named the child and apportioned an amount of the estate to them, then that would pass muster. If not, not, unless no specific heirs were named (rare) and the executor/probate court or liquidating trustee followed specific laws of their jurisdiction for asset distribution.

 

The child could, of course, challenge the will if they are not named in it and mount a case against the estate, at a cost.

 

Last time I was personally involved in such a challenge, as a trustee, the legal fees ran about 10% of asset value, in that case around 20-25K in fees. The estate paid my legal fees. Heirs, or parties who think they should be heirs, do have options. What remains is adjudicating them.

 

As a trustee, if the trustor named specific people or entities for their trust to be distributed to and in what portion (any I've been involved with have), I'd liquidate per the trustor's wishes as outlined in their will. It's not my determination to make what is 'fair' or 'equitable'. A judge can do that, certainly.

[GunslingerRoland]

If there is no will it doesn't matter what you feel or what they feel is right. Every state/province has their own laws that dictate what will need to happen. A lawyer will lead them through the process.

 

But it is much more expensive, and it will waste a lot of the estate's money.

 

Always make sure you have a will drawn up if you have any sorts of assets.

[pureinheart]

The question is now that the farther has died should the assets/money be split between the remaining living sons and daughters, or should they be split between the remaining living sons and daughters AND the child of the deceased because their parent in the tree is not there to receive their share.

 

 

Without a doubt the second scenario- which is how it usually works anyway. Most wills include descendants of the deceased...

[d0nnivain]

Without a doubt the second scenario- which is how it usually works anyway. Most wills include descendants of the deceased...

 

 

But not all do. The executors are legally & morally obligated to do what the Will specifies or what the law requires even if they do not agree with it. Law does not abide generalizations.

[carhill]

A common tactic I've seen, where an otherwise customary heir is materially excluded, is where the grantor/trustor gives that heir one dollar, so their name is included and their distribution specified and there is no ambiguity regarding them being 'remembered'.

 

Wills can be kind of like dating, where a person can be as discriminating as they choose and, heh, even better, without repercussion because, well, they're dead.

[basil67]

Morally, I think the children of the deceased child should get a share on a pro rata basis. I would support contesting a will in which this didn't happen.

[amelia0607]

My great aunt passed away. She had no surviving children or grandchildren - just nieces and nephews. Her will was written so that only blood relatives received her inheritance. Since my dad, her nephew, was already deceased, his portion should've gone to his three children but one off them was already deceased as well. So my Dad's portion was split three ways - 1 part to me, 1 part to my remaining brother, and 1 part was split between my late brother's children. Morally, I think all of Dad's portion should have gone to my mom. However, due to divorce/remarriage issues, she choose to include only blood relatives and I can see that.