My grandma left a quarter of her assets to our deceased father, do these assets go to his next of kin?

1 answer | Last updated: Oct 04, 2016
A fellow caregiver asked...

My grandmother has recently died leaving a quarter of her assets to my father however he died a year ago. Should the assetts now go to his next of kin (me and my sister)


Expert Answers

Barbara Repa, a Caring.com 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.

Your question sounds like a simple one, but because of the laws on wills, it may really become quite complicated. The answer depends on some of the other clauses that were in your grandmother's will"”and oddly, may also depend on what state she lived in when she died.

The usual rule is that beneficiaries must survive the willmaker before they are entitled to take any property under a will. But a number of special rules also apply to interpreting wills, so it is worth your while to see whether an exception may apply in this case.

Some of the most common legal twists and turns are outlined here.

In some wills, there are very clear directions about what to do, for example: "I leave this property to X, but if X does not survive me, then to Y." And some wills have what is called a "residuary beneficiary ”someone to take all the property that does not pass under the will. For example, a will might note: "My residuary estate contains all the property I own at death that is subject to the will, including lapsed or failed gifts." (Gifts to those who have died before the willmaker are often called "lapsed" or "failed.")

If your grandmother made the gift to a group of people who were not named individually"”for example, "I leave my property to be divided among my four children ”and your father was one of those four, then the assets she left to your father would usually be divided in thirds among the other members of the group. However, in some states there is an "anti-lapse law" that modifies this general rule by holding that the person who made the gift (your grandmother) would want the deceased beneficiary's children (you and your sister) to get the property. You can find out whether your grandmother's state has such a law by searching "will" and "anti-lapse" and "statute" and the name of the state in which she lived.

If that law seems too hard to understand"”some are written in language that is nearly impossible to translate, then consider asking a lawyer in that state who is familiar with estate planning.

The executor named in your grandmother's will"”that is, the person named to gather up the property she owned at death and distribute it to the people named in the will, should also be the one responsible for getting the correct answer to your question"”even if that require paying a lawyer for a little advice.

However, if there may be a lot of valuable property at stake, or you don't trust that the executor will do the right thing, then consider hiring a lawyer of your own for this limited purpose.