Idaho Law Blog
By Lane V. Erickson, Idaho Estate Planning Attorney
As a part of my Idaho estate planning practice over the last 20 years I meet with clients to discuss their questions and concerns about either creating an estate plan for them or how the estate plan that they have actually works. Often during these meetings my clients will ask me the question of what happens if one or all of their children die before they do.
This question is a good one because there are no guarantees in life. While it may seem unjust or unfair, parents sometimes do outlive a child or even all of their children. My job as an estate planning attorney is to look down the road of the future and see all the worst things that could possibly happen to my client. My goal is then to create a customized estate plan that will protect my client from these worst-case scenarios.
For a parent, having a child or all of their children die before them is a worst-case scenario. However, our team of Idaho estate planning lawyers can provide options for each individual in their estate planning documents to protect them from this circumstance. In answer to the question “What if my children die before me?”, here are three specific things that you should know about how your Idaho estate plan could work to protect you.
- Distribution to Surviving Children
For parents who have more than one child it is very common for their estate plan to leave all of the property, money, and assets to their children and equal shares. If a child were to die before their parent, one of the options available to the parent in their last will and testament is to simply state that all of their property will be distributed equally among their “surviving children”. As an example, consider for a moment a parent who has four children. In their last will and testament suppose there is language that states that their surviving children will receive equal shares of their estate. This means that each of their children would receive 1/4 of their estate.
However, if one of the children passes away prior the parent, the language in the will now identifies that there are only three surviving children. As a result, each of those surviving children would now receive 1/3 of their parent’s estate and the deceased child would receive nothing. We call this a survivorship clause. What it simply means is that in order to receive a portion of the parent’s estate the child has to outlive the parent based on the instructions in the last will and testament.
For some parents this is an ideal choice. However, this is not the only choice that exists. If this choice does not appeal to you then take a look at the next two choices that are listed below.
- Distribution to the Grandchildren
The second choice that’s available to a parent when they have a child who dies before them is to allow the deceased child’s share of the estate to pass to their children, which would be the parent’s grandchildren. To use the same example that was listed above, suppose that a parent has four children. However, suppose that one of those children passes away before the parent. Also suppose that the child who died has two children of their own. In other words, the parent has two grandchildren through the deceased child.
If the parent chooses they can have language in their last will and testament that simply says that a distribution of their estate will be made to their own “children equally or to their issue by right of representation.” The quoted language is the actual language that is used in a last will and testament. When this language is used and one of the parent’s children passes away before them, then it means that their surviving children still receive 1/4 of the parent’s of estate. The 1/4 of the parent’s estate that would have belonged to the deceased child simply skips a generation and passes down to the grandchildren. As a result, the grandchildren (children of the deceased child) would each receive one half of the 1/4 or a ⅛ share of the parent’s (grandparent’s) estate.
This is an option that’s chosen by many clients because they feel like it is fair to everyone. Many clients often feel that if their child did pass away they would want that share to go directly to their grandchildren through the deceased child to help them.
- Safety Net Distribution to Heirs or Charities
The final option that’s available to our clients is what we call the safety clause or the safety paragraph. We often tell our clients that if there are no beneficiaries listed in their last will and testament that outlive them (if all of their children and grandchildren and other descendants die before them), and they do not have the safety clause, it’s possible for their estate to end up in the hands of the government. No one likes that option. As a result, in almost every last will and testament that we create, we include the safety clause.
The main purpose of the safety clause is to make sure that the parent’s property, money, and assets end up in the hands of some relative somewhere or a charity of the parent’s choosing. This way, the government can never receive the property that’s in the estate.
ENLIST AN IDAHO ESTATE PLANNING ATTORNEY TO HELP YOU
When it comes to estate planning or probate you should never try to do it alone. If you have questions for yourself or for your family and loved ones, we can help. Call us toll free at 877-232-6101 or 208-232-6101 for a consultation with Lane Erickson and the Racine Olson team of Estate Planning attorneys in Idaho. You can also email Lane Erickson directly at lve@racinelaw.net. We will answer your questions and will help you solve your Idaho Estate Planning problems.