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My mother recently died and her will states that all be sold and split between her 5 children. My youngest sister died earlier.

Blakely, GA |

My sister has a an adult daughter, the question I have is does my niece automatically get her deceased mothers share, equally as a the rest of us?

Attorney Answers 4


  1. It depends on the language in the will-it could say equally among the surviving or 5 equal shares issue per stirpes. If it says issue per stirpes-it would go to your sisters child(1/5).

    The answer given does not imply that an attorney-client relationship has been established and your best course of action is to have legal representation in this matter.


  2. The answer depends completely on the exact wording of the will (and perhaps on what was not put in it). Well-written wills contain the answer, and the answer can either be yes or no. Showing the whole will to a lawyer will get you a quick answer.

    This is an issue that can generate court battles. To read one that reached the Georgia Supreme Court less than a year ago look at Stewart v Ray http://www.gasupreme.us/sc-op/pdf/s11a0777.pdf

    Make sure that a lawyer assists in this probate and gets it right.

    If you find this answer helpful, please mark it here on AVVO as helpful. In answering you, I am attempting to communicate general legal information and am not representing you. Do feel free to call me at 404-768-3509 if you wish to discuss actual representation (the phone call also does not retain counsel; that requires an office visit and appropriate paperwork). In that a forum such as this provides me with limited details and doesn't allow me to review details and documents, it is possible that answers here, while meant to be helpful, may in some cases not be complete or accurate, and I highly recommend that you retain legal counsel rather than rely on the answers here. (You can also email my office at geaatl@msn.com . An email also does not retain my office, but can help you get an appointment set if you prefer not to call). Any information in this communication is for discussion purposes only, and is not offered as legal advice. There is no right to rely on the information contained in this communication and no attorney-client relationship is formed. Nothing in my answer should be considered as tax-advice. To ensure compliance with IRS Circular 230, any U.S. federal tax advice provided in this communication is not intended or written to be used, and it cannot be used by the recipient or any other taxpayer (i) for the purpose of avoiding tax penalties that may be imposed on the recipient or any other taxpayer, or (ii) in promoting, marketing or recommending to another party a partnership or other entity, investment plan, arrangement or other transaction addressed herein. I am also required to advise you, if your question concerns bankruptcy, that the U.S. Congress has designated Ashman Law Office as a debt relief agency that can help people file bankruptcy.


  3. My condolences on your loss. As to your question, Mr. Ashman put it perfectly: the answer depends on the wording of the Will. I am going to assume for purposes of this answer that your mother had her principal residence in Georgia at the time of her death, so that Georgia law applies. If your mother did NOT have a Will, then your youngest sister's daughter (assuming that daughter was your youngest sister's only child ever) would step into your sister's shoes and receive the share your sister would have received. However, since you say your mother had a Will this rule does not apply for purposes of determining how the property is distributed. Your youngest sister's daughter IS still an heir of your mother. This means that she will need to either consent or at least be notified if your mother's Will is offered for solemn form probate.

    I very strongly agree with the first two answers: you (or whoever is in charge of your mother's estate) should consult an experienced probate attorney in dealing with your mother's estate. The question of how the Will says property is to be distributed is one complicated question. There are likely to be other questions, including a question which is a common issue: what property actuallly passes under the Will and what passed outside the Will? It is not an area where self-help is a good idea, and good legal advice can be both cost-effective and invaluable.

    This answer is not intended to provide you with specific legal advice regarding your situation, or to create any attorney-client relationship. The intent is only to provide general information. You should be aware that you cannot rely on this answer to provide you with any protection against tax penalties. You should always consult your own attorney in order to obtain legal advice.


  4. A well drawn will would state that the property goes to the children "should they survive me", and then state out what happens if one does not. If contains language which says distribution in the even that a child dies would be "per stirpes" this would mean that your youngest sister's children would take her share. A badly drawn will could result in the remaining children dividing the deceased child's share, the deceased child's share going into her estate (which would be governed by the deceased child's will, if any), or it could be up to any number of interpretations. Whoever is listed as the executor under the will needs to seek legal advice as to how to proceed, as he or she will be responsible for effectuating the terms of the will, and will be liable for mistakes.

    The above information is general in nature. In order to obtain more specific and legal advice upon which to base your important decisions, please contact our office directly for a free phone or in person consultation. Robert M. Gardner, Jr. Hicks, Massey & Gardner, LLP hmgrmg@yahoo.com 53 W. Candler St. Or 718 Oak St. Winder, Ga. 30680 Gainesville, Georgia (770) 307-4899 (770) 538-0555 gadebtlaw.com hicksmasseyandgardner.com serving metro Atlanta and all of Northeast Georgia Bankruptcy, Divorce, Personal Injury, Worker’s Compensation, Medical Malpractice, Adoption, Civil and Criminal Litigation

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