Should we get my father's inheritance from my grandparents even though he died before they did?

6 answers | Last updated: Mar 29, 2015
A fellow caregiver asked...

My grandparents are aging, and they have a fairly significant estate which, previously, was equally divided between my father and his three siblings. My father passed away three years ago, and some changes are currently being made by his mother and the surviving siblings, as my grandfather is in a nursing home and incapacitated. It appears as my brother and I are only being given a portion of what would have been my father's inheritance, and my mother nothing. Is this typical and fair? My family (my brother, mother and I) know that my father would have wanted his inheritance to go to his descendants. We have never had to navigate waters like this, and just want to know what the precedent is in a situation like this.

Expert Answers

Barbara Repa, a senior editor, is an attorney, a journalist specializing in aging issues, and the author of Your Rights in the Workplace (Nolo), now in its 10th edition.

Few things feel as sticky as being in the midst of a family rift over property, especially one connected with distributing an estate, which also stirs up hard internal questions about morality and mortality.

One tough legal truth in your situation is that people are entitled to write and rewrite their wills however they please, as long as they retain the legal capacity to do so. And another one is that you generally must be alive to take property under a will, so when your father died, he no longer technically "inherited" anything from his parents.

It is typical for people to change their wills and other estate planning documents as they age, particularly after a major beneficiary, such as a child, dies--and as they face stresses and expenses they might not have foreseen, such as a stay in a nursing home.

So the scenario you describe is typical, although it may not feel fair. Your most rewarding path at this point is to try to make the most of the time you have left with your grandparents--and recognize that the rewards may have nothing to do with money or property.

Community Answers

A fellow caregiver answered...

It sounds like you were alive when your dad died. Why did his parents (your grandparents) inherit his estate? Did he leave an old will stating so? If his will was written before you were born, many Courts assume that your father had no intention of disinheriting you. If you were a minor child, you would have had an even stronger case. If he did not have a Will (intestate), most States follow a standard order of distributorship. The surviving spouse is first. If the spouse (your mother) was deceased, the children are next in line to inherit. If their is no surviving spouse and no surviving children, only then do the parents (your grandparents)inherit. Last would have been your fathers siblings. If the surviving spouse is a second wife, she gets a 1st portion and the remainder is divided between her and the deceased's children. If the 1st spouse is living but divorced, she gets nothing. So, why did your grandparents inherit your father's Estate if you were born and living?

A fellow caregiver answered...

The second person that answered or gave his/her opinion evidently read this situation wrong.

Theresa.mooore answered...

It isn't a matter of fair or not fair. Your grandparents property is theirs to dispose of as they choose, while they are alive or after their deaths. People frequently make revisions to their wills, especially as time and circumstances change. Your father dying before his parents is unfortunate. No parent wants to see their child predecease them. If your grandparents had passed away first, your father, as one of their children, would have collected his share of their estate, his inheritance and done with it as he saw fit. Because this was not the case, your grandparents are dividing between you and your sibling what would have been left to your father.

This is legally referred to as "per stirpes" (which is Latin for "per branch") Per stirpes is a method for distributing the estate of a deceased individual. Per stirpes specifies that each branch of the deceased person's family receives an equal share of the estate, regardless of how many people are in that branch. Your mother (their daughter-in-law) is not any blood relation to them and she is not considered a direct descendant of their lineage. After you inherit, you and your sibling can always choose to share your portion with your mother but there is no reason to expect your grandparents to give her anything. Their estate is following a line of descent, a family lineage or blood line. My parents have made the same provisions in their will, if the same circumstances were to occur. The grandchildren step into the place of the deceased parent to inherit. The spouse(s) of any children are not considered heirs.

J-peezae answered...

I feel like im in a simular situation. My father was in an accident about 17 years ago. He broke his neck diving into a shallow lake. He died 2 years ago. My grandfather died before my dad, but not before his accident. all the while my grandmother is still alive. my grandpa owned 4 classic cars, from a baby blue 62 pontiac catilina to a 75 Buick Riviara. the 75 was willed to my dad but when he had his diving accident my grandparents decided to give it to my youngest aunt instead. who couldnt use it so she sold it. i feel like the car should have gone to me. i would still be using it today. but last week my grandmother died. so i just hope i dont get phased out of my fathers share of the inheritance like i did the car. im mainly concerned for my youngest siblings who need the money more than i do.

feeling left out,

A fellow caregiver answered...

It is easy to get wrapped up into thinking one is owed something that someone else worked for. this sometimes makes it easy to overlook the gifts that were left that no one can take from you like integrity, a good education, common sense and fun experiences.

An estate belongs to the person who earned it and they can surely do whatever they want with it. unless they are being taken advantage of, it is what it is...