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legallysound
legallysound, Attorney
Category: Estate Law
Satisfied Customers: 1333
Experience:  Over 12 years of practical experience in Estate Planning, Trust and Probate law.
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upon death of husband and wife at same time (auto accident,

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upon death of husband and wife at same time (auto accident, etc.) how would the value of estate be divided amoung children? facts to consider,#1 both husband and wife have no children together, both have children from previous marriages, husband has 1 surviving child, one child was killed recently by a drunk driver in an auto accident, wife has 5 children,so is the estate to be divded equally amoung 6 children with no consideration for decessed child, or would the estate be divided 7 ways with the deceased childs portion going to his brother, or would the estate be split 50/50 with husands children getting 1/2, and wife's children splitting 1/2 equally?
Submitted: 7 years ago.
Category: Estate Law
Expert:  legallysound replied 7 years ago.
Thank you for using JustAnswer.

Can you please tell me:

1. Did the deceased son of the husband have any children?

2. Did the couple own all their assets jointly or was there separate property?

3. Was there any Will or Trust that they signed?

Thank you.
Customer: replied 7 years ago.

deceased child was not married, no children, husband inherited marital home prior to current marrage, but husband and wife have refinanced home and have joint ownership, on all assects, except personl items each owned prior to marriage, they want this info so a leagal will can be written and filed as a "just in case something happens to both of them at the same time"

Expert:  legallysound replied 7 years ago.
OK.

This is the downside of owning assets as "joint tenants with right of survivorship"...there will always be one spouse who gets 100% of the jointly titled assets.

In the situation you describe (the accident), one spouse will be "presumed" to survive -- even if both die in the same accident. The problem with this presumption is that the one who is presumed to die last inherits everything and only that surviving spouse's children inherit ---- unless there is a document to the contrary.

So to not have a plan in place could mean that the wife's children get everything or the husband's children get everything.

So, what I suggest is a Trust. Both spouses sign it. The trust sets out what each spouse's children get -- regardless of who dies first or second. And after one spouse dies, the other spouse cannot change the plan of the first deceased spouse. The plan will remain in tact. Thanks!

Please press the GREEN "ACCEPT" button so proper credit is provided for your answer. No attorney-client relationship was formed or contemplated by this communication. All communications here are not to be considered legal advice and are for educational and informational purposes only.

Customer: replied 7 years ago.
this does not answer the legal question, if husband and wife cannot agree on division of estate, before they can write a will, what will the leagal ruling be, must the estate be divided 7 ways, 6 ways, or 50/ 50 to each spouces surviving children
Expert:  legallysound replied 7 years ago.
Are you asking what distribution plan they should write in the Will? If so, this is entirely up to them. And their plan can be whatever they want.

If they create a plan (in a Will or Trust), they can make it so it all goes equally -- here that would mean 6 ways, with the share of any child that fails to survive

As I said, if nothing is ever written, one spouse's children could end up with everything. Please let me know if I am not understanding things correctly. Sometimes with this online stuff it's not not easy.

Customer: replied 7 years ago.
again, husband and wife cannot agree how to divide estate, so in order to write a will, where the legal system has to make the decission as to division of property, must it be divided 6 ways, 7 ways, or 1/2 to husbands children, 1/2 to wife's children
Expert:  legallysound replied 7 years ago.
OK. Then the most common way is to divide it as you say in the latter part of your last post...

1/2 of the estate to the children of the husband; and 1/2 of the estate to the children of the wife.

Further, the share for any deceased child shall be distributed to that child's children "per stirpes". The share of any deceased child who leaves no surviving children shall augment, proportionately, the shares of the other beneficiaries.   

FYI: "per stirpes" means it goes down the family bloodline of a deceased child. This way, no in-laws or spouses of children will inherit. Thank you.

Please press the GREEN "ACCEPT" button so proper credit is provided for your answer. No attorney-client relationship was formed or contemplated by this communication. All communications here are not to be considered legal advice and are for educational and informational purposes only.
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