December 1

Inheritance Rights of Siblings who predecease their parents

Cortes Law Firm Oklahoma City Estate Planning Attorney

Inheritance Rights of Siblings who predecease their parents

One of the things people tell us when their parents pass away is that they are the only remaining sibling in the family. So they believe they should get everything from their parent. That might be true in some cases, but I'm here to tell you that in most cases, that is absolutely not the case.

And here's why. The first reason is your mother or father may have had a last will and testament. And if they did, we really need to look at the language of that last will and testament to see what it says when a sibling predeceases the parent. Usually there's language in the last will that if a son or daughter predeceases the parent, then that son or daughter's decedents, in other words, their children, the grandchildren get their share of the estate.

But sometimes there is language in there that says that if a son or a daughter predeceases the parent, then their share lapses. So what is lapse mean? Lapse simply means that if a son or daughter predeceases or anybody, actually, predeceases the person who has just passed away, then that share lapses and they don't get it and their decedents don't get it either.

This is important because a lot of times language in there will say it lapses and it goes to the other beneficiaries in our last will and testament. For example, Len said that there was three brothers and sisters and two of the brothers had passed away and the sister was the only one remaining that was living when the last parent passed away.

If the term of the last will and testament said that the brothers' share lapsed and it goes to the other beneficiary, then the sister gets 100% of the estate because the brothers' share lapsed. Now we could go down a rabbit hole with this 'cause sometimes those laps clauses will also say, if my son, Joey, predeceases me, then his share goes to the church, or his share goes to my favorite niece, or my favorite nephew, whatever it is.

But the point is that a last will and testament can have language in there that the child's share lapses and it goes to somebody else. Now, the other thing that a last will and testament can say is that if my child predeceases me, my son or daughter predeceases me, then their share goes to their decedents.

In other words, if Joey passes away before the parent does, then once the parent passes away, Joey's share goes to his kids or to his grandkids, whoever is next in line. So that's really important. So you have to look at the last will and testament, if there is one, to see what distribution language there is, if somebody has predeceased the parent.

Now I already hear some of you saying, "Well, my parent didn't have a last will and testament "and my two brothers passed away, "so me Sally, get everything, right?" Well, not so fast. Then, if there is no last will and testament, you have to look at the terms of intestate succession in whatever state you're living in.

Here in Oklahoma, the intestate succession statute, I believe is Title 84 Section 213, and you can look in that statute. And under the terms of intestate succession, Sally does not get 100% of the estate. Under the terms of intestate succession, if her two brothers have predeceased her parents, then their share goes to their descendants.

In other words, it goes to their estates and that is something that people are always really surprised about when they come into our office to probate a parent's estate. They're like, "Well, my brother died 10 years ago, "and so we don't have to worry about his share, "it all goes to me." And that is simply not the case if they don't have a will.

Under the terms of intestate succession, that brother's estate gets the share that he would have gotten had he been living. And that's very important because it goes to his estate. That means if they didn't probate that brother's estate 10 years ago when he passed away, then they are probably going to have to probate it now to distribute his share to whoever his heirs are, right?

Because we're just probating the parents' estate, we don't know where the brothers' share is supposed to go to. He could have had a last will and testament, and if he did, then they probably have to probate his estate under the terms of the last will and testament. Or if he didn't, then they have to probate it under the terms of intestate succession.

When we probate estate, as a safety, we don't give it to the decedents of that brother, we give it to his estate and we let the estate figure out where that money should go. That's a really important point. If you are the surviving brother or sister in a family, and your parent has recently passed away, don't just assume that you get 100% of the estate.

You have to look at either the last will and testament, if there is one, and if there wasn't, you have to look at the terms of intestate succession.

I know I've thrown a lot at you today, so that's why we've prepared our free guide on estate planning. I'll put a link to it in the description below and in the comment section below that so that you can download it and get started in the right direction.

And to help you out even more, watch this video up here and this video up here. If you enjoyed this video, then guys please smash that subscribe button and click on the like button, and also click on that little bell so you'll get notified every time we post a new video. Have a great day and an awesome week.

And as always, thanks for watching.


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