If your will does not address this issue, then your state’s laws will be applied.
Estate planning attorneys deal with unexpected issues all of the time, and by their nature, some of them involve sensitive and sad topics. A recent article in The Carroll County Times addressed the question of what happens when a child predeceases a parent. The article, “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?” explains that a will can be prepared for this possibility, and a will can also be changed, if this was not previously considered.
As an example, the Maryland Estate and Trusts Code says “[u]nless a contrary intent is expressly indicated in the will, a legacy may not lapse or fail because of the death of a legatee after the execution of the will but prior to the death of the testator.”
This means your child’s estate will receive the share you designated in your will, if that child predeceases you. Whoever inherits the child’s estate, will receive what the deceased child is awarded in the will.
The law in Maryland says that the legatee (the deceased child) has to be specifically named in the will to get whatever share of your estate you directed. The law also points out that if you don’t want to leave part of your estate to the individuals who would inherit from your deceased son or daughter, you must specify how you want your estate divided if one of your children dies before you.
It might be worth making that legal specification in your estate plan, if you and your daughter in-law have hated each other for 20 years, and you don’t want her to inherit the money or other assets that would have gone to your deceased son.
In early Maryland history, a legatee’s right to receive a share of the estate was not protected if he died before the author of the will. If the will didn’t have instructions as to how the share should be distributed, if the legatee died before the author, then the share remained in the estate—the deceased legatee’s heirs received nothing.
The common law rule that effectively cut off the deceased legatee’s heirs was modified by an anti-lapse statute adopted in 1810. This transferred the deceased legatee’s share to the persons who shared in his estate according to her will, or, if she left no will, those who shared in her estate under law.
When a legatee doesn’t survive the author of the will by 30 days, state law typically treats this as if that legatee had predeceased the will’s author.
Speak with your estate planning attorney to see if this is something that your will should address. These are the subtle nuances of estate planning that, in certain situations, can make a big difference in the kind of legacy you leave behind.
Reference: The Carroll County Times (December 21, 2018) “Legal Matters: If predeceased by an heir in a valid will, what happens with that inheritance?”