Legal Question in Wills and Trusts in Pennsylvania

Will reads "In the event that any of my children should predecease me leaving issue, then the share that such deceased child would have taken under this Will, I give, devise and bequeath to her issue, per stirpes. One of children has died without leaving any children. Is estate divided among remaining children??? Would the deceased child's will have any bearing on this? I live in the state of PA.

Asked on 1/18/13, 7:38 pm

1 Answer from Attorneys

Without looking at the whole will, its hard to say exactly. First, who made the will? Are they alive or dead?

The clause you quoted says basically, that the testator leaves property to his/her children. If a child dies before the testator, the children of the deceased child (grandchildren) will inherit their dead parent's share.

But I don't know if the will went on to say that if a child died with no children what would happen. I also don't know the order in which the parent and child died.

If the parent died after the child, two things are possible:

(1) either the will goes on to specify and will say something like "in the event my deceased child dies without issue, then the share of such child shall pass to ..."

(2) if the will does not contain such directive, then a partial intestacy will result and the share of the deceased child will pass to those who would inherit the property under the state intestacy laws. That means the share of the dead child will pass to the surviving spouse (if any) and other living children of the testator.

The will of the deceased child is irrelevant to the testator's will if the child died before the testator. If the testator died first, then the testator's property passes to ALL of the children including the one who died later. The dead child's share in such case would then be distributed as per the dead child's will, if any.

If the testator is still alive and one of the children is dead leaving no issue and if the will does not spell out what will happen to the share of the dead child, the testator should not be relying on state intestacy law and either needs the will to be re-written or needs to add a codicil explaining that a child has died and his/her share will pass to whomever the testator wants to have it.

While you may live in PA, that does not tell me where the testator lives now (if he/she is alive) or where he/she lived prior to death. You also do not indicate if you are the testator or some other sibling of the dead child. I suggest that in any of these situations, that you consult with a probate/estate planning lawyer to review the current will. If you are the testator, then see if the will contains a contingency and consider adding a codicil or getting a new will. If the testator is dead and the child died first, consult with the attorney to see what the will says if anything about who can receive the dead child's share. Finally, if the child died after the parent, then you will need to have the attorney also review the dead child's will. However, unless you are the executor, it will be the executor's responsibility to pay the share of the dead child to the dead child's executor/estate.

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Answered on 1/20/13, 11:01 pm

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