Providing for grandchildren in a will

Dear Len & Rosie,

Both my husband and my son have recently died, leaving my daughter and me. My will was drawn up in 1989 so that my children would share equally if anything is left to share. My daughter has no children, but my son had two. Will my son’s children split his share of my estate or must I contact a lawyer and make a new will? Or should I get a trust instead? I want to make sure that my grandchildren get their fair share.

Clara

Dear Clara,

The answer to your question depends on what exactly your will says. The dispositive provisions of your will (the part of your will that says who gets what when you die), probably say that your children will split your estate into shares by “right of survivorship” or by “right of representation.” These are important phrases that you should understand.

“Right of survivorship” means that each gift will lapse if the person you are giving it to dies before you do. If your son inherits through your 1989 will by right of survivorship, then your daughter will inherit everything when you die and your son’s children will get nothing.

“Right of representation,” which is sometimes also called “per stirpes,” is what you want. If your gift to your son is by right of representation, then his gift will not lapse because he died before you. Rather, it will pass on to his issue, which means his two sons will share one-half of your estate. Your son’s widow will get nothing unless your will says so.

If your will does not specify that your son’s gift is either by right of representation or by right of survivorship, then you ought to have an estate planning attorney look at your will. California has an anti-lapse statute that could pass your son’s half of your estate to his children, but it will not apply if the precise wording of your will shows an intention that your son must survive you to receive a portion of your estate. Your will should also hold your grandchildren’s inheritance in trust until they are mature enough to be responsible with it. Otherwise, your 18-year-old grandson will spend it all on a new car that he can’t afford to insure.

This can get a little bit complicated, so you should rely on the professional opinion of an attorney, instead of trying to figure it out for yourself. You do not want to make mistakes with your will, because you cannot fix them after you are dead.

You should also look into creating a trust. Wills pass through probate in the courts, which is very lucrative for attorneys. If you own a house, or if your estate is worth more than a couple of hundred thousand dollars, then you ought to consider a revocable trust. A trust will cost you more money than a will, but it will save your family time and money after you pass away.

Len & Rosie