How JustAnswer Works:
  • Ask an Expert
    Experts are full of valuable knowledge and are ready to help with any question. Credentials confirmed by a Fortune 500 verification firm.
  • Get a Professional Answer
    Via email, text message, or notification as you wait on our site.
    Ask follow up questions if you need to.
  • 100% Satisfaction Guarantee
    Rate the answer you receive.
Ask RayAnswers Your Own Question
RayAnswers
RayAnswers, Attorney
Category: Estate Law
Satisfied Customers: 36982
Experience:  Texas lawyer for 30 years in Estate law
8534270
Type Your Estate Law Question Here...
RayAnswers is online now
A new question is answered every 9 seconds

We are in Ohio and my mom wanted her estate to go to her remaining children as one brother

Customer Question

We are in Ohio and my mom wanted her estate to go to her remaining children as one brother is deceased. She has it in her will that the estate goes to the living children but did not name his children as living in this will (her grandchildren)from the deceased brother. Will this cause a complication? Is her will going to be valid and the estate go to her surviving children only and not a portion to the deceased brother children?
Submitted: 1 year ago.
Category: Estate Law
Expert:  RayAnswers replied 1 year ago.
Hi and welcome to JA.I am Ray and will be the expert helping you tonight. Here it depends on the wording.If the will states that it is left to the three children and not the surviving children then the share of the deceased sibling likely passes to the the children.If the intent was to leave it to only the surviving children at time of death the will has to state this. The probate court has the final say about whether the share here passes to the living children or it passes to the children of the child of the deceased.A word here or there gets a totally different result and if there is a dispute the judge has final say in naming the heirs and their shares.Anytime there is a vagueness or will has language that is lacking the judge in probate has the final say here. The presumption is that if it was left to the chidlren here and no other limitation it means the deceased child passes his share to his estate under the terms of his will or under laws of intestacy.But this may be disputed and judge has to decide the matter. I appreciate the chance to help you tonight.Please let me know if you have more follow up.
Expert:  RayAnswers replied 1 year ago.
Thanks again.
Expert:  RayAnswers replied 1 year ago.
Reference to the law.
http://codes.ohio.gov/orc/2107
Court has the final say as to who the heirs are once will is admitted as valid.
I appreciate the chance to help you.If you can leave a positive rating it is always much appreciated.
Customer: replied 1 year ago.
The question is she didn't name the deceased brothers children in the will as living just the other grandchildren. Her wishes were that the estate went to the surviving children.
Expert:  RayAnswers replied 1 year ago.
Well if the will was worded that way then it passes that way.If there is any question about intent you would be able to testify about that issue.This only comes up if there is dispute among family and there is a contest.In that situation you can present what you felt was her intent and the probate judge may well agree with you.If the will was properly drafted it should be accepted and held up the the court. It appears that she wanted only the surviving children to take shares.
Expert:  RayAnswers replied 1 year ago.
Here it depends on whether it was worded per capita or per stirpes, here is an article that explains it.If it is held to be per capita tot he living children you get equal shares as the living children.If it is held to be per stirpes all children living or deceased get a share. http://www.fortenberrylaw.com/stirpes-stirpes-capita-distribution/ Judge here decides the matter under Ohio law.
Expert:  RayAnswers replied 1 year ago.
If the will states the living children inherit per capita to such of my children as survive me then the living children take it here.
Expert:  RayAnswers replied 1 year ago.
If the will leave it to all the children per stirpes then the children here get a share, so again it depends what the will states as far as language and a word here or there can mean a different outcome.You may well convince the judge this is what the will states and deceased person meant to do.
Expert:  RayAnswers replied 1 year ago.
Another reference with examples.. http://johnsonandjohnsonohio.com/what-is-per-stirpes-what-is-per-capita/
Expert:  RayAnswers replied 1 year ago.
One more with examples. let me know if you have more follow up.http://wills.about.com/od/estateplanning101/a/perstripvpercap.htm
Customer: replied 1 year ago.
There is nothing about per capita or stripes. The will states living grandchildren of the living siblings. It states I leave my entire estate to my children and states the names of the living children in equal shares. I am sorry but am confused by your answer. Thanks for your help.
Customer: replied 1 year ago.
Did you receive my last email
Expert:  RayAnswers replied 1 year ago.
It is confusing because the will doesn't have the proper language in it.Honestly the judge decides this.Based on what you present the deceased child is likely to get a share and it passes to that persons heirs , probably that persons children.I wish I could tell you otherwise.The court is likely bound by the document and it does not say only the living children.In that situation you would have burden to show why the deceased child and their estate does not get a share. This is just something that should have been worded correctly in the will and apparently was not.Thi9s likely passes per stirpes--equally by head count--means everybody gets equal shares including the decease person.You argue the deceased meant to have it pass per capita --only to the living children. You can argue this per capita but I fear the judge with a lack of language finds it was meant to be per stirpes. I know this is not what you want to hear but I am being honest here, the judge may see it differently but you deserve the answers here evenif they aren't looking in your favor. I can only give you my best information under Ohio law under what you present as the will terms.Again I am not the judge and they might see it differently. I hope you can appreciate honesty and not shoot the messenger here.If the will was worded differently you would have better odds. Thanks again for the chance to chat. More examples maybe this will clarify it. http://wills.about.com/od/estateplanning101/a/perstripvpercap.htm This is the kind of stuff law exams are made of it is tricky no doubt.
Expert:  RayAnswers replied 1 year ago.
I hope this helps you understand it all.
Expert:  RayAnswers replied 1 year ago.
Please let me know if you have more, it was my pleasure to try to help you, I wish you the best in probate court.
If you can leave a positive response it is always much appreciated.