If an heir to an estate dies before the estate is through probate and distribution made to the heirs.....?

Question

I am one of 4 heirs to an aunt's estate. One of the heirs just had a major stroke and may not survive. If he passes away before the estate proceeds are distributed, would his wife get 1/4 of our aunt's estate, or would it then be divided by 3 instead of 4? This is in Michigan. Don't get me wrong, I truly hope my cousin survives and regains his good health.

Answer 1

Depends on how the current will is written.

An example of how the term "per stirpes" operates is as follows. Let us assume that Mr. Smith left the remainder of his estate to his "children in equal shares, per stirpes." Mr. Smith has three children: Moe, Larry, and Curly Joe. Let us further assume that Curly Joe predeceased his father, Mr. Smith, leaving two children of his own: Stooger1 and Stooger2. The words "per stirpes" indicate that Moe & Larry are not entitled to claim Curly Joe's share due to his death before their father. Curly Joe's share would fall to his children to be shared equally by them.

What happens if one beneficiaries from the group who was to receive "per stirpes" predeceases the maker of a Last Will and has no lineal descendants? Continuing our example from above, the situation would be one where Curly Joe predeceased Mr. Smith and was not survived by any children or grandchildren. In such cases, in our forms contain the following provision:

Answer 2

There are two main types of distribution, per stirpes and per capita. Per stirpes means by right of representation, meaning that the estate will be distributed to the respective heirs or their descendants according to the first generational shares. In other words, if the heir dies, his own heirs will get his share as if he were still alive. Per capita means by the head or each heir gets an equal split. In other words if the heir dies, then the distribution goes to all heirs and the deceased's heirs get equal share with the other three as if they were all on the same generational level. Most estates don't do it that way. The most common way is to divide it by right of representation. In lieu of that, it would depend on what the original will or trust document says in it. There should be a distribution clause that spells out what happens in the event of death of one of the heirs. Usually it will say something like "in the event that my heirs do not survive me, then their share shall be distributed to their respective heirs by right of representation".
My guess is that your share will not be lessened and the deceased heir's share will not go to his wife, but to his own heirs, unless his wife is his only heir.

Answer 3

In most cases the will has a sentence defining who will be considered to have "predeceased" the writer of the will. A common one says, "Any devisee or legatee who does not survive me for a period thirty days shall not take under this will but shall be considered to have predeceased me, and such devise or legacy shall pass under this will as if the devisee or legatee had predeceased me." In other words, if your cousin doesn't live longer than your aunt, your cousin gets nothing.

In the absence of such a provision, because your cousin lived after your aunt died, your cousin's estate will inherit from your aunt's estate, and if your cousin dies before your aunt's estate goes through probate your cousin's heirs will split the inheritance according to either your cousin's will or your states intestacy laws.

I hope your cousin lives and this is all moot.

Answer 4

Since your aunt has already passed and your cousin is still alive, should he die his share will go to any surviving heir as he chooses or his spouse depending on how his will is written.


(paralegal)

Answer 5

Unless otherwise indicated, the date the testator dies is the measurement date and NOT any date having to do with probate.

Answer 6

I think it depends on how the will is written. If it says something like "all surviving heirs" then it would be divided among the three of you.