What happens if a beneficiary dies before the maker of a Will?
A grandparent recently passed away. She had four children. When her Will was written all her children were alive and she named them to "share her estate equally" not naming her children by name. It is a very simple Will. Years before her passing one of her children passed away. The grandparent never changed her Will. Are the children of the child who passed away entitled to their mother's share of the grandmother's estate? No grandchildren are named in the grandmother's Will.
Asset distribution of an estate to beneficiaries can be "per stirpes" or "per capita".
Per stirpes means taking “by representation” or “by class.” In other words, if the beneficiaries are to share in a distribution per stirpes, then the living member in the class of beneficiaries who is closest in relationship to the person making the distribution will receive an equal share (i.e. your grandmother's children). However, if a member in the class of beneficiaries who is closest in relationship to the person making the distribution is deceased and survived by any descendants, then that deceased beneficiary’s descendants will take “by representation” what their deceased parent would have taken (that is the children of the deceased child).
Or estate assets can be distributed “per capita,” which means taking “by total head count” or “by total number of individuals.” This means that if the beneficiaries are to share in a distribution “per capita,” then all of the living members of the identified group will receive an equal share. However, if a member of the identified group is deceased, then a share won’t be created for the deceased member and all of the shares of the other members will be increased accordingly. Therefore, in this situation, the remaining children would split you grandmother's estate 3 not 4 ways.
Since the wording of the Will is not clear as to your grandmother's intent the probate court will have to make a determination after reviewing all of the facts.
Additionally, NY has what is known as an "anti-lapse statute". Basically what this means is that if a Will beneficiary dies during the testator’s lifetime, the gift lapses unless the gift is saved by the state’s anti-lapse statute. The anti-lapse statute provides that the gift does not lapse but vests in the deceased beneficiary’s issue who survive the testator if the deceased beneficiary was testator’s issue or siblings and the predeceased beneficiary leaves issue who survives the testator. In other words if the beneficiary, here the deceased child, dies before the testator (your grandmother), there is a judicial preference that the gift does not fail. This means that by statute the deceased beneficiary's issue (their children) will inherit.
The conditions for invoking the statute are strict however. While the anti-lapse statute creates an inference that decedent intended to benefit a descendant of a legatee, but the statute is inapplicable when the will provides evidence of a contrary intent. NY courts have determined in construing a Will, the intention of the testator must be the "absolute guide". That intent is to be ascertained "not from a single word or phrase but from a sympathetic reading of the will as an entirety and in view of all the facts and circumstances under which the provisions of the will were framed".
Therefore, anything that your grandmother may have said that evidences her intention that her grandchildren should share in her estate would be key. Just as anything that she may have said demonstrates her intent was to have only her children benefit from an inheritance.
Bottom line, you should consult with an estate planning attorney as to all of this.