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Elderlaw: 10/15/2009

Dividing an estate

Dear Len & Rosie,

I made a new will after my husband died ten years ago. I had five children, and my will divides my estate among them equally. Four years ago, my son Richard died. He had two children, and a wife, an awful woman named Margaret. There is no love lost between us. I want to make sure that she gets nothing when I die. Do I need a new will?


Dear Sarah,

Pull out your will and read the part that talks about who gets what when you die. Read it closely. There are two ways that Margaret could get your money. The first way is simple. The will must say that if Richard predeceases you, his share of the estate shall pass to his wife Margaret. If your will says this, then you definitely need a new will.

Even if Margaret is not getting Richard's share, you are not yet in the clear. If your will says the shares of your children are by "right of survivorship", then your estate will be divided among your then-living children after your death. Richard's two children will get nothing. If you want them to receive their father's share, the gift to your children should be by "right of representation", which means the share of a dead child would pass to his or her living descendants.

Margaret would still get nothing. But if Richard's children are under the age of 18, then any inheritance they receive from your estate cannot be distributed to them directly. It would be held in a guardianship or maybe by a custodian under the Uniform Transfers to Minors Act. And guess who is most likely to be guardian or custodian? Margaret. The money would belong to your grandchildren, but she would be in charge of it, and she would be in an ideal position to rip off her own kids.

To prevent this, your will should leave the shares of your estate passing to your grandchildren in either a sprinkling trust, or in a custodial account under the Uniform Transfer to Minors Act with your will spelling out that Margaret will never be trustee or custodian. Your will should also appoint the people you want as trustees or custodians who could then spend the money on your grandchildren to pay for their education and other needs. This way, even if Margaret continues to raise your grandchildren, she won't get her hands on their money.

You should review your will with a trusts and estates or elder law attorney. You may also want to consider getting a trust to avoid probate. Take care of this now, and you'll have the piece of mind of knowing that Margaret won't get her hands on your estate.

Len Tillem and Rosie McNichol are elder law attorneys. Contact them at 846 Broadway, Sonoma, CA 95476, by phone at (707) 996-4505, or on the Internet at Len also answers legal questions each weekday, Noon-1 p.m. and Sundays, 4-7 p.m. on KGO Radio 810 AM.

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