WHAT'S THE DIFFERENCE BETWEEN "To The Then Living Children of my Brother" opposed to if it just read,"To the Children of my Brot

Asked over 1 year ago - San Francisco, CA

...of my Brother">listed under the Residuary Gift in a Will? Is there a difference? If so, "What..?

Attorney answers (5)

  1. Charles Richard Perry


    Contributor Level 16


    Lawyers agree


    Answered . The idea of "then living children" means the children alive at the time of the death of the person making the will. It would not include children who passed away beforehand.

  2. Joseph Michael Pankowski Jr

    Contributor Level 18


    Lawyers agree


    Answered . "To the then living children of my brother" means the children of my brother who are living at the time of the testator's death.

    "To the children of my brother" means that living children and the estates of deceased children would all share at the time of the testator's death.

    This information is presented as a public service. It should not be construed to be formal legal advice nor... more
  3. Judy A. Goldstein

    Contributor Level 20


    Lawyers agree

    Answered . If the testator passes away and children have predeceased him/her, the predeceasing child's portion goes to that child's estate. This is different from a bequest which awards only to children who are living at the time the testator passes away.

  4. Benjamin H. Ballard

    Contributor Level 7


    Lawyers agree

    Answered . The reason for doing it this way is to divide the shares among the living children only, not among the living children and the heirs of any dead children. It is important to write will clearly to make the intent obvious.

  5. Charles Adam Shultz

    Contributor Level 19


    Lawyers agree


    Answered . This would only possibly create an "issue" if a child were to pre-decease your brother. If all children of your brother were living, then the language is the same. If one child was deceased but had then living children, the issue becomes what to do with the share of the deceased child. Under the first "living children" only the living children are allocated a share and the child of the deceased child get nothing.

    Under the second, its not a clear and with out more in the document, California would default into the grandchildren stepping into their father's shoes.

    The general advice above does not constitute an attorney-client relationship: you haven't hired me or my firm or... more

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