Providing for grandchildren in a will

Dear Len & Rosie,

Both my husband and my son have recently died, leaving my daughter and me. My will was drawn up in 1989 so that my children would share equally if anything is left to share. My daughter has no children, but my son had two. Will my son’s children split his share of my estate or must I contact a lawyer and make a new will? Or should I get a trust instead? I want to make sure that my grandchildren get their fair share.

Clara

Dear Clara,

The answer to your question depends on what exactly your will says. The dispositive provisions of your will (the part of your will that says who gets what when you die), probably say that your children will split your estate into shares by “right of survivorship” or by “right of representation.” These are important phrases that you should understand.

“Right of survivorship” means that each gift will lapse if the person you are giving it to dies before you do. If your son inherits through your 1989 will by right of survivorship, then your daughter will inherit everything when you die and your son’s children will get nothing.

“Right of representation,” which is sometimes also called “per stirpes,” is what you want. If your gift to your son is by right of representation, then his gift will not lapse because he died before you. Rather, it will pass on to his issue, which means his two sons will share one-half of your estate. Your son’s widow will get nothing unless your will says so.

If your will does not specify that your son’s gift is either by right of representation or by right of survivorship, then you ought to have an estate planning attorney look at your will. California has an anti-lapse statute that could pass your son’s half of your estate to his children, but it will not apply if the precise wording of your will shows an intention that your son must survive you to receive a portion of your estate. Your will should also hold your grandchildren’s inheritance in trust until they are mature enough to be responsible with it. Otherwise, your 18-year-old grandson will spend it all on a new car that he can’t afford to insure.

This can get a little bit complicated, so you should rely on the professional opinion of an attorney, instead of trying to figure it out for yourself. You do not want to make mistakes with your will, because you cannot fix them after you are dead.

You should also look into creating a trust. Wills pass through probate in the courts, which is very lucrative for attorneys. If you own a house, or if your estate is worth more than a couple of hundred thousand dollars, then you ought to consider a revocable trust. A trust will cost you more money than a will, but it will save your family time and money after you pass away.

Len & Rosie

What happened to uncle's will?

Dear Len & Rosie,

My uncle passed away five years ago. Since he was estranged from the family at the time of his death, we were not notified, and were unable to collect his personal belongings. A person he met not too long before his death took over and she was supposedly named in my uncle’s will or revocable trust. My daughter was named to receive her uncle’s doll collection but we never received a copy of the will.

The home is still titled in my uncle’s name today. I even called my uncle’s number and his “friend” answered. She said she didn’t know when my uncle would be home, even though he died five years ago. Is there a way to find out where the will is or if there is one?  If there is no will, can my mother, his closest living relative, petition the court for possession of the home?

Stacy

Dear Stacy,

It sure looks like something fishy is going on here. There’s a small possibility that there’s a will or trust that leaves everything to your uncle’s friend, but if there was, the property should have been probated already. And if there was a probate, then notice was supposed to have been given to your uncle’s parents, if alive, or his brothers and sisters or their living descendants. You can check with the Superior Court in the county where your uncle resided on his death to see if any probate was opened, but chances are that never happened.

What’s more likely to be the case here is that this “friend” has been squatting in your uncle’s home for five years and there may not be a will or trust at all. So what your family should do is to hire a lawyer, and petition the court to administer your uncle’s estate in probate. Because there is no will, at least that you know of, your uncle’s estate will be distributed by intestate succession - either to his parents, or brothers and sisters and their living descendents, depending on who was alive at the time of your brother’s death.

If you do this, you’ll get appointed by the court as the administrator of your uncle’s estate. Then, you can send notice terminating this woman’s tenancy and follow through with an eviction when she refuses to leave. This is where it can get sticky. You may have a difficult time getting her out of the home because she could claim she owns the property by adverse possession.

Under adverse possession, if she has openly and notoriously held possession of your uncle’s home for at least five years, and if she has paid the property tax during that time, she may be able to establish ownership of your uncle’s home. So do not delay. Get a lawyer ASAP and file for probate, because if more than five years has passed since your uncle’s death, it may be too late.

The lesson here is simple. If a family member dies and something doesn’t pass the smell test, don’t sit on your hands wondering what’s going on. It’s better to take legal action sooner rather than later. Even if you win and your family gets to inherit your uncle’s home, we’re willing to bet that those dolls you want for your daughter are long gone.

Len & Rosie