Answers to legal questions

posed by the general public to Memphis Attorney Christina Burdette

Q: Testators last will and testament leaves estate to his sons per strip. One heir died before testator......

So now the deceased sons portion is going to his only child. Codicil to will was made the Predeceased heir per strips was omitted. Her portion was made to a non blood relative. No Where does it state Predeceased heir is disinherited in will or codicil. Since will is per strips doesn't it have to stay with blood relatives. What is Predeceased heir per strips rights? Thank You!

A: In a per stirpes distribution, a group represents a deceased ancestor.....

The group takes the proportional share to which the deceased ancestor would have been entitled if still living. For example, a man died intestate; his wife predeceased him. He had four children, three of whom are still living at the time of his death. The deceased child had three children, all still living. These three grandchildren will share equally in one-fourth of their grandfather's estate, the share the deceased parent would have taken if still alive. The three living children will also each receive one-fourth of the estate. I don't understand what you mean when you say that there's a codicil to the will omitting the per stripes language. A codicil to a will is an amendment that supersedes selected language in the will. I would have to see the codicil to understand what changes it made to the will. If the will has been presented for probate, the codicil to the will would have been presented at the same time and incorporated into the last will and testament. If the codicil is valid, omits the per stirpes language and directs distribution to someone who is not a blood relative, there is a good chance that this is how the estate will be distributed. It all hinges on the testator's intent. If the testator intended for the deceased child's portion to pass to the heirs of that child, then use of the per stripes language was correct. If the testator changed his mind and made a codicil removing the per stirpes language, then maybe that was his intent, to pass his deceased child's share to the non-blood relative. The bottom line is that the predeceased heir's children have no rights, unless they're prepared to argue that the testator was coerced or under duress when he signed the codicil. That's not always easy to prove. My answer would be different if we were dealing with a spouse who had been disinherited; that can't be done in Tennessee. But children, grandchildren, brothers, sisters, any other relative can be written out of a will at a testator's whim.

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