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What If Your Child Dies Before You?


Article by Oren Ross

Photography by Oren Ross

What happens to your estate if your child dies before you?

Estate Planning

Estate planning is primarily about making informed choices so that your instructions and wishes are followed faithfully and precisely at the time of your death or in the event that you become incapacitated. However, far too many people put it off and wind up with no estate plan at all.

If you haven’t created a last will and testament, or if you haven’t considered estate planning, now is the time, because no one can know the future. In Georgia, your last will and testament should also be updated regularly with the advice and guidance of an Atlanta estate planning attorney.

Let’s say that you haven’t updated your will, and one of your beneficiaries passes away before you. What happens to that person’s share of the estate?

If you’ll keep reading, you’ll learn the answer to that question, you will learn more about your options for your last will and testament, and you’ll also learn about the full range of legal and estate planning services that an Atlanta estate planning lawyer can provide.

Why Is the Language in Your Will So Important?

If one of your beneficiaries passes away before you, what happens to that person’s share of the estate will depend on the language in your will. Sometimes the will itself specifies what happens to that person’s share.

However, if the instructions that are left in a will are not precise, or if specific heirs or beneficiaries are not named in the will, what happens to a deceased beneficiary’s share of an estate may be determined by state law.

If an inheritance was left to a number of people who are not named individually in the will – for example, if you leave assets “to my children” – special rules will apply if one of those people passes away before the estate is settled.

What Are Georgia’s Inheritance Rules When a Beneficiary Dies?

Under Georgia law, when an heir or the beneficiary of an estate dies while the estate is pending, the property and/or assets that were supposed to be inherited by that person, in most cases, will go instead to that person’s estate.

Let’s say, for instance, that your spouse’s father or mother dies, and your spouse is supposed to inherit a part of that parent’s estate, but then your spouse passes away before the parent’s estate is settled.

Who Are Considered Heirs at Law?

In such a case, the part of the parent’s property and assets that was supposed to go to your spouse goes instead to your spouse’s estate. Then, if your spouse did not leave a will, the property is distributed to your spouse’s “heirs at law” as determined by Georgia law. Heirs at law are:

  • the spouse if there are no children (and no children who died and left grandchildren)
  • the spouse, children, and the children of any deceased child or children
  • the parents if there is no spouse, children, or grandchildren
  • the list continues through siblings, grandparents, aunts and uncles, and cousins

When Siblings Are Beneficiaries

Let’s take another example. Let’s say that your widowed father dies and leaves everything to be split equally between you and your only brother, and then your brother dies immediately before or after your father. Your brother has two children. Who gets his share of your father’s estate?

If your father’s last will and testament used specific language, it will dictate what happens. If the will says that only his own children who survive him are to receive shares, then you would receive all of the assets from your father’s estate, since you would be the only surviving child.

On the other hand, if the will clearly specifies that the assets are to be split into equal shares, one share for you and one share for your brother, your brother’s children will inherit your brother’s share if he is deceased when the assets are distributed.

What Will an Estate Planning Attorney Do on Your Behalf?

But if the language in your will is not specific, and if one of your beneficiaries dies before the estate is settled, Georgia law may or may not kick in. If you are a beneficiary in such a situation, you may need to seek legal advice and guidance from a Georgia estate planning lawyer.

When you prepare or revise a last will and testament, confusion and ambiguity in your will can be eliminated by having the right Georgia estate planning attorney draft your will. You can work side-by-side with your attorney so that the details of your will precisely express your wishes.

Candidly speaking, many of us actually need more than a will. When you prepare a last will and testament, you should also speak with your lawyer about setting up a comprehensive estate plan, especially if you own a home or a business, if you support your family, or if others rely on you.

Why Should You Have a Comprehensive Estate Plan?

There is no reason to avoid estate planning once you become a legal adult. After you turn 18, your parents can no longer make medical or financial decisions on your behalf, but an estate plan specifies who can make those decisions for you and under precisely what circumstances.

Effective estate planning requires the creation of detailed legal and financial documents which may include a revocable living trust, a financial power of attorney, an advance directive for healthcare, and more depending on your particular circumstances, goals, and needs.

A carefully considered estate plan is important for people in all walks of life who want to protect their families and finances and avoid conflicts among family members. The right estate plan can eliminate confusion and keep your loved ones out of legal disputes after your death.

Estate planning is primarily about making informed choices so that your instructions and wishes are followed faithfully and precisely at the time of your death or in the event that you become incapacitated. However, far too many people put it off and wind up with no estate plan at all.

When Should You Contact an Estate Planning Lawyer?

The right Georgia estate planning lawyer can help you set up a personalized estate plan that reduces the taxes, streamlines the administration of your estate, and lets your loved ones avoid the costly and time-consuming probate process.

Finally, if you have a last will and testament that has not been updated in three or more years, if one of your heirs or beneficiaries has passed away, or if other major changes have happened in your life, it’s time to have your will updated with an estate planning lawyer’s help.

Estate planning should never be done in haste or under pressure, but if you do not have an estate plan in place, and especially if you do not have a last will and testament, the time to schedule a first consultation with an Atlanta estate planning attorney is today. Call Oren Ross & Associates at 678-250-4281, or find us online at