Common estate planning questions - What happens to my estate if one of my children predeceases me?

As uncomfortable and uninspiring it is to think about this possibility, we all know it is a real possibility.  The common scenario I will review is what I call the classic family - first marriage, children are biological children of husband and wife; four children in the family.

The will is structured such that the first to die passes the estate to the surviving spouse.  But what happens if one child dies before mom and dad pass away? 

In the wills we draft, the typical scenario says in section two that all personal property goes to my spouse, but if my spouse predeceases me, all to my children in equal shares.  But, f one of my children does not survive me, that child’s share to their living descendants as my children agree.  That type of wording empowers the living children of the marriage to determine how best to provide for their nieces and/or nephews from their deceased sibling.  If, however, the deceased biological child does not have any children (aka, lineal descendants), then that deceased child’s share lapses.  In other words, it goes back into the pot for the remaining biological children.

If any of your biological children, or your children’s lineal descendants are under a certain age (usually 18 or 21 years old) at the time of taking under the will, then the will creates a Testamentary Trust to manage the property until the beneficiary reaches a certain age (again, usually 18 or 21 years old).  A person must be designated as Trustee in your will to account for this scenario.  The Trustee can be a different person than the Personal Representative (aka, Executor), but most people assign the Trustee role to the Personal Representative.

Life can present scenarios to us that we never thought we would have to endure.  Having an estate plan in place is a great way to make a stressful situation a tad less stressful.  

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