Estate planning is not a favorite holiday season topic, but a recent email raised a question that may be helpful to address publicly. The emailer asked, if your will directs that your estate be divided equally between your son and daughter, and one of them dies before you do, how will your assets be divided after you die?
Your will may provide how the estate should be distributed if one of the legatees dies before you. If not, you can change your will to reflect how you want the estate divided after the loss of your child.
If you fail to change your will, state law will step in.
The Maryland Estate and Trusts Code says in part, “Unless 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.”
The legal language means that your child’s estate will still receive the share you designated in your will, regardless of whether the child predeceased you. That means whoever received the child’s estate will receive what your deceased child is awarded in your will.
The code states that the legatee — the deceased child — must be specifically identified in the will to receive whatever share of your estate you directed. The law also makes clear that if you do not want to leave part of your estate to the individuals who inherit from your deceased son or daughter, you must specify how you want your estate divided in the event one of your children dies before you.
Is it worth specifying? It can be, if you and your daughter in-law have hated each other for 20 years, and you do not want her to receive 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 did not contain directions on how the share should be distributed if the legatee died before the author, the share remained in the estate and the deceased legatee’s heirs received nothing.
The common law rule that effectively cut off the deceased legatee’s heirs was changed by an anti-lapse statute adopted in 1810. That law transferred the deceased legatee’s share to the persons who shared in his estate according to his will, or, if he left no will, those who shared in his estate under law.
When a legatee does not survive the author of the will by 30 days, state law treats the situation as if that legatee had predeceased the will’s author.