Do Grandchildren Usually Get Inheritance?

In New York, grandchildren usually do not get an inheritance, unless they are beneficiaries in the will, they substitute their predeceased parent among the children of their grandparent, or the grandparent has no surviving children.

Grandchildren Receiving Inheritance as Beneficiaries in a Will

A will is a legal document, executed by a testator in accordance with state law, providing for the distribution of the testator’s assets upon the testator’s death. If the grandchildren are named as beneficiaries in the decedent’s will, the grandchildren will inherit what is provided in the will, for as long as estate assets are sufficient to pay estate debts and the grandchild’s legacy is not abated.

In New York, however, under the anti-lapse statute (EPTL § 3-3.3), even if the grandchildren are not named as beneficiaries in the grandparent’s will, the grandchildren may still inherit in substitution by representation, if their parent predeceases their grandparent and there is no express provision in the will prohibiting the lapse of the gift. For example, if A dies with a will, leaving his son B with $200,000 and B predeceases A, B’s children can substitute B in the will of A, for as long as A’s will does not expressly prohibit the lapse of the gift. An example of a provision prohibiting the lapse of the gift is an express statement saying that, if B dies before A, B’s issue will not inherit by representation but B’s share will be returned to the residuary estate to be distributed in accordance with the will.

Grandchildren Getting Inheritance When There is No Surviving Children

If the grandparent dies without a will, the grandchildren will inherit from the grandparent if there are no surviving children. Under EPTL § 4-1.1, an order of priority among the relatives of the decedent is provided and the existence of a prior class excludes all other classes. In this provision, when a decedent dies without a will, his estate is distributed to his spouse and issue by representation.

The issue of a decedent are the descendants of the decedent. The nearer descendants of the decedent exclude the later descendants of the decedent. For this reason, if the decedent dies with children, the children inherit from their parent, to the exclusion of the children’s children (which are the grandchildren). However, if there are no surviving children, then the decedent’s grandchildren would get an inheritance because they would be considered the nearest issue of the decedent.

Another way for grandchildren to get an inheritance, if the grandparent dies without a will, is if the grandparent has some surviving children with other predeceased children. The issue of the predeceased children, which are the grandchildren, can inherit from the grandparent in substitute of their predeceased parent. This is the right of representation provided under EPTL § 4-1.1.

For example, if A dies without a will, leaving children B and C, and B has a child D while C has a child E (so D and E are A’s grandchildren), A’s children B and C inherit from A to the exclusion of their children D and E (who are A’s grandchildren) because the children B and C are the issue (descendants) nearer to A.

On the other hand, given the same facts but A’s child B predeceases A, his child C and grandchild D will inherit from A. C inherits as a child of A, while grandchild D inherits from A by representation as the child of his predeceased parent, B.

Understanding when a grandchild can inherit from a grandparent can be complex and will depend on a lot of factors such as whether the grandparent died with or without a will and whether the will contained an anti-lapse provision. An estate attorney will be able to analyze your case, given its unique circumstances. 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].