Skip to main content

What if there's a Will that says this, "Gift of the residue of my estate": Everything that is left of my estate after all of the

San Francisco, CA |

...above gifts, & after death taxes, the payment of my debts, & the expenses of my funeral & last illness & of thde administration of my property & estatte, costs, expenses of litigation,counsel fees or other charges the Executor may incur shall be given to Mike Smith of san fran ca. free of all death taxes. If Mike Smith does not survive me then "HIS HALF" of this gift shall be divided among his then living children, free of death taxes. I have a high regard for my half brother Mike Smith. Desiring that a significant part of my estate pass to some of the people who are broadly members of my family & recognizing that Mike Smith is elderly & may not survive me. I have in this will made a gift of a large part of my estate to the then living children of Mike Smith.>So who gets the other 50%

Attorney Answers 5

  1. Without reading the entire will to make sure there isn't another gift somewhere, I would be guessing. However, based strictly on what you quoted above, it appears that the will contains a serious error. If the person who created the will (the "testator") is still alive, I suggest s/he go back to the lawyer who made the mistake and have it rectified immediately!

    If the "testator" is not alive, then the will will need to be submitted to probate. There are (at least) 2 possible outcomes:

    a) Mike Smith can try to prove that there was an error in the document and that he is supposed to receive the "entire" residuary estate or

    b) the 50% that does not go to Mike Smith will pass by "intestate succession" to the "testator's" nearest surviving relatives.... if Mike Smith is a half-brother and there are no other siblings, then it would appear (based on the information you provided) that he would end up with the entire estate.

    The response given is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be anything other than the educated opinion of the author. It should not be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change. Attorney is licensed to practice law only in the State of California. Responses are based solely on California law unless stated otherwise.

  2. It does appear as if there is a serious ambiguity in that provision of the will, based on looking at the text you have provided. A petition to determine entitlement to inheritance could be filed to have the court decide what this language means, and who is entitled to a share of the estate.

    I would recommend consulting with an attorney familiar with probate law about what steps to take. Certainly, if the testator is still alive, they should redo their will, or sign a codicil, to clear up any ambiguity.


  3. Janet and John are spot-on- no attorney can really answer your question without reading the entire Will. There's just too much information missing (and the additional language the poster "provided" really doesn't help because it's out of context) and, based on what has been provided, there appears to be a very large, extremely significant gap regarding the "other" 50%.

    Spend the money on an hour of an attorney's time to review the Will. Also, keep in mind that, if you (or others) decide to probate the Will via an attorney, the attorney's non-extraordinary fees are set by statute, so you should be able to get a handle on potential costs upfront.

    Good luck!

    Every situation is unique and therefore the opinions/ comments made on this site are merely opinions and comments. They don't constitute legal advice, offer any guarantees, and may not even be applicable to the question initially posed. Most importantly, my comments/ opinions on this site do not create an attorney-client relationship or representation. Thank you for your understanding.

  4. Because the will is ambiguous (unless other will language that you haven't provided clears up the ambiguity), a court would have to resolve the issue if the will isn't changed while the testator still is living. Two possibilities that spring to mind are that the whole share for Mike Smith might go to his kids or half of Mike's share might go to his kids and the other half passes to the testator's intestate heirs. Most likely circumstantial evidence (such as the drafting lawyer's testimony and file notes) could shed light on the intent. Lawrence Friedman, Bridgewater, NJ. Certified as an Elder Law Attorney by the ABA approved National Elder Law Foundation, former Chair NJ State Bar Association Elder and Disabilities Law Section, Member Board of Consultors of NJSBA Real Property, Trusts & Estates Law Section, Vice Chair Special Needs Law Section of National Academy of Elder Law Attorneys, and Master of Laws (L.L.M.) in Taxation from N.Y.U. School of Law.

  5. Is there a provision before that labelled "Specific Bequest" that says "I give 50% of the estate to Mike Smith's children" ? -- in that case the will is not ambiguous. Absent that, you need an attorney to help you parse the document and to petition to have the court interpret it. You may also have a malpractice claim against the drafting attorney for a "scrivener's error" -- and time is ticking on getting both straightened out. If you are someone left out you may have an argument that this gap has created an "intestate share" which would go to heirs-at-law of the decedent. Get a lawyer fast.

Probate topics

Top tips from attorneys

What others are asking

An attorney can help.

Post a question and get free legal advice from attorneys.

Ask a Lawyer

- or -

Search for lawyers by reviews and ratings.

Find a Lawyer

Browse all legal topics