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Irwin Law
Irwin Law, Attorney
Category: Estate Law
Satisfied Customers: 5558
Experience:  30+ yrs. handling probate estate, wills, trust, inheritance & real estate related matters
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Rights as the heir to a beneficiary

Customer Question

My grandmother's will divides her estate equally amoung her children. My mother, her daughter, passed away several years ago and I want to know if my sister and I can legally claim her portion of the estate.


Just to expound a little on the situation - the precise wording of the will is "I hereby give, divise and bequeath all real and personal property owned by me at the time of my death, together with all insurance policies thereon unto my children, equally, share and share alike."


And, there is another item that may or may not be important -

"Any and all payment or payments of any sum or sums whether in cash or in kind and whether for principal or income payable to said children or any of them shall be made upon the sole receipt of the respective individial to whom the payment is made and free from anticipation, control by the creditors of any such beneficiary. All shares of the principle and income given shall be free from anticipation, assignment, pledges obligations of any beneficiary and shall not be subject to any execution or attachment."


Frankly, I don't know what any of this means. I have no idea if I have any legal rights in this situation and I don't particularly want to retain an attorney for an unwinnable case.

Submitted: 2 years ago.
Category: Estate Law
Expert:  Thomas McJD replied 2 years ago.


Hi, I will be happy to assist you, and it is my goal to make you a very satisfied customer! This may take a few minutes, so thanks for your patience.


It depends entirely on the language of the will. If the will states that in the event a beneficiary is deceased on your mother's death that the beneficiary's share goes to the beneficiary's descendants, then your sister's share would go to her children if she has any. If the will is silent, then that provision of the will would be treated as invalid, in which case, the other provisions would control so that you and your sister would end up receiving her share. You'll have to review the language used and see. It's usually one of those two ways that property is distributed under the terms of a will (1. either to the descendants of the deceased beneficiary or 2) to the remaining beneficiaries).


Hello!The information I provided is truly all the will states. It's only 4 pages long, and the quoted text is literally all there is to know.


So - because this will does not specifically address the issue of one of the beneficiaries being deceased, does the matter then fall under a state or federal law to determine who would collect?

Expert:  Irwin Law replied 2 years ago.
Is the answer that you received satisfactory or are you in need of more information.
Customer: replied 2 years ago.

Hello Irwin Law,


Yes - unfortunately I am in need of more information. TMcJD's answer really didn't assist me at all, it just restates my initial conundrum. And it appears, he is not available over the weekend.

With the additional quotes I provided from the will - I'd like to know what the legal interpretation is. And if, because as I see it the matter is not specifically addressed, the will is considered "silent" how the outcome is then determined.


Thanks very much for your assistance!


Expert:  Irwin Law replied 2 years ago.

Hello. Most states, including PA have adopted what is known as an "anti lapse statute": Generally, they provide that when a will contains a general bequest "to my children", and a child predeceases the testator, as in your case, the children of the pre deceased child, take their parent's share. It is known as taking by "representation". The share and share alike provision is ancient will language which is over ridden by the anti lapse statute which provides for "per stirpes" distribution. Simply stated, the grandchildren divide their parent's share which means that they would each inherit less than a surviving child. Here is a discussion of a PA case on the subject.

I hope that this information is helpful. Please click on a smiley face so that I will be compensated for assisting you. If you have a follow up question please send me back a Reply without entering any rating. Also, be sure to verify this information with a local attorney who is familiar with your local laws and procedures. Thanks again for using Pearl.Com- Just Answer. Your business is appreciated.

Irwin Law, Attorney
Category: Estate Law
Satisfied Customers: 5558
Experience: 30+ yrs. handling probate estate, wills, trust, inheritance & real estate related matters
Irwin Law and 2 other Estate Law Specialists are ready to help you
Customer: replied 2 years ago.

Thanks very much!

Expert:  Irwin Law replied 2 years ago.
You're welcome. Thanks for using Just Answer

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