Do Grandchildren Inherit a Parent’s Portion if the Parent is Deceased in New York City

In New York, the grandchildren inherit their parents’ portion if the parent is deceased, unless there is an express provision in the will that disallows it.

When determining whether a grandchild can inherit the parent’s portion if the parent died before the deceased person, we first look into whether the deceased person died with or without a will.

When the Decedent Died Without a Will

When a decedent dies without a will, his estate is distributed in accordance with state laws on intestacy. In New York, the intestate law is reflected in EPTL § 4-1.1.

In this case, when a decedent dies without a will and is survived by his children, the decedent’s children and their issue have the right to inherit by right of representation.

EPTL § 4-1.1 generally talks of “issue” and not children. “Issue” refers to the descendants of the decedent, which includes his children, grandchildren, and great grandchildren. The right of representation allows the issue to inherit the share of the ascendant who is an issue of the decedent and who predeceased the decedent.

In this provision, if the issue of decedent is allowed to inherit from decedent, if there are predeceased issue in that class of issue, the children of the predeceased issue can take the place of the predeceased issue and inherit from the decedent.

For example, A has four children, B, C, D, and E; B has one child, F; C has one child, G; E has two children, H and I; and E dies before A. When A dies, survived by B, C, D, F, G, H, and I, A’s surviving children, B, C, and D, inherit in their own right, while A’s grandchildren through E, H and I, inherit from A through their parent E, by right of representation. Thus, B, C, and D will get ¼ each, while H and I will get 1/8 each or a total of ¼ (the share of E). H and I will inherit their E’s portion, because E predeceased A. See diagram below.

In the same example above, in case B, C, D, and E predecease A, then F, G, H, and I all inherit from A in their own right, with each grandchild getting ¼ each.

When the Decedent Died With a Will

When a decedent dies with a will, the provisions of the will always apply. If the will is silent, the law will apply.

In New York, the anti-lapse statute in EPTL § 3-3.3 provides that dispositions to beneficiaries who are the testator’s issue, brother or sister do not lapse in case the beneficiary predeceases the testator, but instead vests in the surviving issue by representation.

The New York anti-lapse statute will not apply if the last will and testament contains a specific provision stating that the predeceased beneficiary’s share will not go to the predeceased beneficiary’s issue but instead to someone else or back to the estate of the decedent.

In the same example above, in case A designates his child, E, as a beneficiary and E predeceases A, E’s supposed share will go to his issue, H and I. However, if A’s will contains a provision stating that if a beneficiary does not survive A, the share will not go to the issue but revert back to the estate, then H and I cannot inherit by right of representation the share of E.

In general, in cases of intestacy in New York, the grandchildren can inherit their parents’ portion if the parent predeceased the grandparent. In case there is a will, a grandchildren can inherit their parents’ portion if the parent predeceased the grandparent, except if there is an express provision in the will that disallows it.

Interpreting a will can be a complex matter. It is important to get the advice of an estate attorney to know your rights and remedies. Should you need assistance, we at the Law Offices of Albert Goodwin are here for you. We have offices in New York City, Brooklyn, NY and Queens, NY. You can call us at 212-233-1233 or send us an email at [email protected].