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If a will is made with 3 beneficiaries namely A,B,C. If A should die, who would get A's assets, B and C. or would A's assets

Taylor, PA |

be passed to A's wife or husband and children?
Thank you.

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Attorney answers 6

Best Answer
Posted

Your question is a fact specific question. The best answer that anyone can provide is that “it depends”. Does the testator have residuary beneficiaries if A predeceases the testator (please note: the terms “per stirpes” or “per capita” are not always used in wills, but if they are used, this language would indicate how the A’s interest is to proceed – “per stirpes” would mean that A’s interest goes to his/her issue; “per capita” would mean that A’s interest would go to B and/or C. If these terms are not used, does the will detail who receives A’s share of the estate if A predeceases the testator?)? What is A’s relationship to the testator of the will? Does the will have a pre-requisite that A survive the testator?

Generally, a will takes a snapshot of the person’s life at the moment he/she dies. If the will indicates that the estate goes to A, and is silent, the general rule of thumb is that A’s issue do not receive A’s interests. This is called lapsing. However, there is an exception to the general rule of thumb. Pennsylvania has an anti-lapse statute.
Pennsylvania’s anti-lapse statute applies to bequests to issue (children and other descendants of all generations), brothers or sisters, or a child of a brother or sister. A bequest to any of these named relatives does not lapse but is payable to the issue of the deceased beneficiary unless the will provides to the contrary or the law’s exception noted below applies.

Any will can override the anti-lapse statute by conditioning the bequest to a beneficiary on survivorship.

There are additional exceptions to the anti-lapse statute. I would recommend that you speak to an estate administration attorney to further understand Pennsylvania’s anti-lapse statute.

Legal disclaimer: Please note: Robert Cronin is licensed to practice law in Pennsylvania. Nothing in this article is to be taken as legal advice. No communication between Robert Cronin and readers of this article is to be inferred to cause an attorney client relationship. If you require legal assistance please contact an attorney who is licensed in your jurisdiction and knowledgeable in the area of law in which you require help.

Posted

Hello ...

It could go either way - more often than not, it will pass to the children (not wife) by a concept called "per stirpes" (Latin for "By The String" and not an English misspelling of "stripes").

It will say it in the Will.

Good luck,

John

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Posted

A properly drafted Will should tell you the answer. If it does not, then you have a potential mess on your hands. Will should say, "A, if living, but if A is predeceased, then to A's descendants, by right of representation," or some such language. If it does not say anything, then I guess you need to go to the state anti-lapse statute, if there is one.

If the Will does not provide for contingent beneficiaries, then this suggests it was a do-it-yourself or an internet Will. This is never a good idea for estate planning.

James Frederick

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Posted

That is actually a fairly common question. And the answer, as is so often the case in this field, is that it depends. Specifically, it depends on the wording of the will as well as the relationship of A, B, and C to the person whose will we're talking about - called the testator. The will may have a provision that sets forth what happens to property if A predeceases the testator. If not, the general rule is that property intended to A will pass to A's children in equal shares so long as A is related to the testator - a child, sibling, niece, or nephew. But again, this rule can be abrogated by specific language in the will.

I'm assuming that this is just an academic question and that you are interested in the process. If your question relates to a real life situation, however, you should have an estates attorney in your area review the will in question to determine how the estate will be distributed.

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Posted

If A dies before the person who made the will (the testator), you have to look to the will to determine who takes.
If A survived the testator (by at least 120 hours in many states), then it depends on A's own estate plan.

P.S. Per stirpes means "by the root" http://answers.ask.com/Reference/Dictionaries/what_does_per_stirpes_mean

This is not legal advice. I am not your lawyer. You are not my client. You cannot rely on my response to your question. My response to your question is probably worth exactly what you paid for it. You don't get to sue me for anything. If you'd like to sue me, well you have to hire me first. Here's how you can hire me! #1 Call: 1-888-463-2843 #2 Email: david@davidcarrierlaw.com #3 See me on TV! www.woodtv.com - go to the Ask the Expert tab! #4 Listen to my radio show (2 full hours every week!) www.woodradio.com - go to the podcast section.

James P. Frederick

James P. Frederick

Posted

Unless the Will provides otherwise, of course. ;-)

John B. Whalen Jr.

John B. Whalen Jr.

Posted

P.S. ... or it also means "per branch" ... http://www.investorwords.com/3688/per_stirpes.html ... funny - the original question was well answered ... now we have moved to the Avvo Latin Blog ... :-) ...

James P. Frederick

James P. Frederick

Posted

Res ipsa loquitur!

David L. Carrier

David L. Carrier

Posted

Tempus Fugit!

John B. Whalen Jr.

John B. Whalen Jr.

Posted

I actually had 4 years of Latin ... This will be butchered, but "Puer Magna Est" ("The Boys Are Good") ...

James P. Frederick

James P. Frederick

Posted

The only latin I had was in law school. I actually really liked res ipsa loquitur, however, and I still use it, to this day. The thing speaks for itself...applies to so many different situations!

David L. Carrier

David L. Carrier

Posted

Hoya Saxa! (Georgetown LLM, TaX)

Posted

I agree- a well drafted will always has a contingent plan for beneficiares and also personal representatives.

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.

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