Q&A with Loraine: How Does a “Double Death” Affect Asset Distribution?

Question: My grandmother passed away a week after my father passed away. Do I take my dad’s spot in grandmother’s will?

Loraine’s Answer: Please accept my condolences on your double loss.

Assuming that your father was your grandmother’s child, which it appears from your post he likely was, you would take his place as one of your grandmother’s heirs. (“Heirs” are the people who would receive a deceased person’s remaining probate estate if that person had no valid Will.) Under Georgia law, as an heir, you will be one of the people who is entitled to notice if someone tries to open your grandmother’s estate for administration or offer a Will for probate. And, if she does not have a valid Will, you will be one of the people who is entitled to receive a share of her remaining probate estate after all debts, expenses, and taxes have been paid and after any year’s support claim has been satisfied, if she was married at her death or has any surviving minor children. However, in order for anyone to be able to answer your question about the effect of your father’s death on your grandmother’s Will, that person would need to see the actual Will. State law can be overridden by the person who takes the time to execute a Will.

If your grandmother’s Will follows a common pattern, then it might say that, at her death, her remaining probate property is to benefit her children, with each child to receive an equal share. It might also say that because your father died before she passed that your father’s share is still created but benefits his children. In that case, you would take your father’s place under the Will (or at least you would receive part of his share- if he had other children, they would also get shares). However, I have seen Wills that say that only living children receive shares and that there is no share created for a child who does not survive the person who wrote the Will, even if that deceased child has his own children. I have also seen Wills that provide for a surviving grandchild from a predeceased child to receive a different share than the more typical provision would have provided for that grandchild. There is not a set requirement in the law about what the Will has to say in this kind of situation. It’s up to the person who the Will belongs to- it’s intended to reflect her wishes.

You are entitled to see a copy of the Will if it is offered for probate. If you are asked to sign something so that the Will can be offered for probate and you are not given a complete copy of the Will along with a complete copy of that petition for probate, you should demand to see complete copies of both documents. If you think the Will isn’t valid, you will also have the right to challenge it, but you don’t necessarily have the right to receive a certain share. If you have any questions about your actual rights, or if you have questions about how to interpret the Will and any other documents you are given, you’ll need to consult an attorney once you have a copy of the Will.

Key Estate Planning Takeaway: While state law may give family members certain rights with regard to the property owned by a deceased person, a Will overrides state law and can modify or eliminate the rights and interests that state law would create. Without seeing what a given Will actually says, there’s no way to know how it will operate under a given set of facts. In this case, while it’s possible that the grandmother’s Will provided for her deceased son’s children to receive whatever share he would have received if he had survived her, and while that’s what state law would have provided, her actual Will may not make this provision. While that type of distribution is common, this grandmother could have stipulated that only her adult children living at the time of her death are entitled to a share of assets, or made some other provision. The only way to know what her Will actually says is to read it. Having a copy of the actual Will is the only way to know what you may be entitled to when someone dies, and that is especially true in a double death situation like this one.

This “Q&A with Loraine” blog series features answers from Morgan + DiSalvo Partner Loraine DiSalvo to questions posted on www.avvo.com. A key takeaway from each exchange highlights an important facet of estate planning.

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