Question: In Georgia, what happens if a beneficiary predeceases the writer of a Will?
A woman’s Will left all her assets, including property, stocks, and cash, to her two sons to be split evenly. One of the sons predeceased her. The son who passed away has three children. If no new Will is written, will the assets that the deceased son was supposed to receive be split between the son’s three children or will it go to the woman’s other son (the one still living)?
Loraine’s Answer: What happens depends on how the Will is written. If the Will is silent, then state law will apply.
Wills will often contain language that says, “per stirpes” or “per capita.” Per stirpes means that the deceased beneficiary’s descendants would inherit his or her share. Per capita generally means that, if a beneficiary dies, the Will’s assets would only be distributed to surviving (living) heirs. In this case, the surviving son would receive the entire estate instead of half. A Will can also avoid using either per stirpes or per capita. In that case, you need to read the exact language and see what, if anything, the Will says should happen to a predeceased beneficiary’s share.
In this case, if the Will provides for the predeceased son’s share to go to his descendants, then that’s what will happen. If the Will says that no share should be created for a predeceased child and the property should only go to living children, then that’s what will happen. If the Will says that a predeceased child’s share goes somewhere else altogether (for example, the Will could say that the predeceased child’s share gets created but then goes to a charity), then that’s what will happen. If the Will does not say what happens to a predeceased child’s share, then Georgia’s anti-lapse statute will have that share go to the deceased son’s descendants. Have an attorney who is experienced in probate and estate planning review the Will and help you figure it out.
Key Estate Planning Takeaway: If a beneficiary in a Will dies, what happens to his or her inheritance depends on how the Will is written and on whether and how the Will addresses that issue.
This “Q&A with Loraine” blog series is inspired by answers from Morgan + DiSalvo Partner Loraine DiSalvo to actual user questions posted by individuals on www.avvo.com. This blog is a more in-depth response than can be given on their site under their character limits for answers. To view the original question and Loraine’s original response, click here.
