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What Happens to My Estate Plan if My Child Dies Before Me?

No parent wants to contemplate losing a child. But from an estate planning perspective, you should anticipate how you wish to handle your own affairs in the event a child does not outlive you. Addressing these contingencies up front can help avoid misunderstandings after your death as to your wishes.

Per Stirpes Distribution

For example, suppose you are currently married and have three children. You sign a will that provides if you die and your spouse does not survive you, then your entire estate should be divided equally among your three children. Assuming all of your children are alive at the time of your death, it should be a relatively straightforward matter for the executor of your estate to gather your assets and divide them into three equal shares, one for each child.

But what if one of your children passes away unexpectedly and you do not revise your will to reflect this tragic event? What happens to that one-third share of your estate designated for the deceased child? The answer to this question depends on the precise language of your will.

In many wills, the testator will specify any distribution to his or her descendants should be made “per stirpes.” This is also known as “right of representation distribution.” Basically, a per stirpes distribution preserves the share of a deceased heir’s inheritance for his or her own heirs.

Put another way, if the deceased child in the hypothetical above had children of her own, the one-third share of your estate would be divided equally among those children. So if at the time of your death you have two living children—and one pre-deceased child with two living children—then your two surviving children each receive one-third of your estate, while your two grandchildren would receive one-sixth apiece.

Alternatives to Per Stirpes

You are certainly not required to use a per stirpes distribution in your own will. You could, for instance, specify a distribution to your “then living children, per capita.” The use of “per capita” means your estate will only be divided into as a many shares as there are surviving children. So if one of your hypothetical three children dies before you, your estate will only be divided among the surviving two children.

A per capita distribution may also refer to a broader class than simply your children. You could specify all of your descendants—children and grandchildren alike—should each receive an equal share of your estate under a per capita distribution. This may prove to be too complicated (and raise significant tax problems) to be practical. That is why you should always speak with an experienced California estate planning attorney before making a will or trust of any kind.

You should also consider revising your existing will or trust if there has been an unfortunate death in the family. If you need to speak with an attorney as soon as possible, contact the Law Office of Scott C. Soady in San Diego today.

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