When your parent dies and you have siblings who have predeceased your parent, you are probably wondering whether grandchildren can get inheritance after your parent dies. The answer depends on whether the parent died with or without a will and whether there was a contrary provision in the will.
Whether the parent dies with or without a will
Without a will
When a parent dies without a will, his estate will be distributed in accordance with the state’s intestacy laws. Most states allow the issue (also called descendants) of the decedent to inherit from the decedent by representation. By representation means that each individual of a class is treated similarly: all children are treated the same, all grandchildren are treated the same, and so on.
For example, if (a) parent A has children B, C, and D; (b) B predeceases A, survived by his children, E and F; and (c) parent A dies with an estate of $90K, leaving A’s children, C and D, and B’s children, E and F, as survivors, then C and D will receive $30K each, and B’s children, E and F, have the right to represent B and will receive $15K each, for a total of $90K.
Why? Because B, C, and D should be treated similarly, being all children of A. Thus, A’s $90K estate should be divided equally among the children, each getting $30K each. Since B predeceased A, B’s children, E and F, are allowed to inherit from A by representation. Since B is only receiving $30K, this amount is equally shared among B’s children with E and F getting $15K each.
Thus, if a parent dies without a will and one child predeceases the parent, most state laws would allow the grandchildren to inherit from the parent by representation.
With a will
When a parent dies with a will, the parent’s estate is distributed in accordance with the will and not state intestacy laws. When a child dies before the parent and the child is a beneficiary in the will, the child usually inherits under an anti-lapse statute unless there is a contrary provision in the will. All states in the US have enacted some form of anti-lapse statute.
Anti-lapse statutes allow the descendants of a beneficiary to take the place of the predeceased beneficiary in inheriting from the decedent. In New York, when the beneficiary is the decedent’s descendant or sibling, the gift passes to the predeceased beneficiary’s descendants, unless a contrary intention appears from the will.
In the example above, if we assume that parent A died with a will naming his children B, C, and D as beneficiaries, B’s children, E and F, can inherit from parent A under the anti-lapse statute if B predeceased A, for as long as there is no contrary intention in the will. If the will states, for example, an alternate beneficiary to B, then B’s children will not inherit because the will provides that the alternate beneficiary will get the gift if the child B predeceases the parent A.
How anti-lapse applies
When determining whether the anti-lapse statute applies, one must remember:
- The anti-lapse statute applies to beneficiaries in wills.
- The anti-lapse statute applies only if the beneficiary and the testator are closely related. If the beneficiary and testator are only friends or are cousins, the anti-lapse statute will not apply, and the gift goes back to the estate and is distributed to the remainder beneficiary or through intestacy if there is no remainder beneficiary.
Although we have outlined the guidelines above in determining whether a grandchild can inherit from the parent, advice must still be obtained from an estate litigation attorney for a proper evaluation of your case. The answer will always depend on the unique circumstances of your situation.
Should you need assistance or counsel regarding your inheritance, we at the law offices of Albert Goodwin are here for you. We are located in New York, NY. You can call us at 212-233-1233 or send us an email at [email protected].