How to prevent a family will fallout if a child dies before a parent

Polly Coram, solicitor with Jones Myers wills and trust department

To minimise legal costs, many parents who want to leave their estate to their children entrust its administration to friends and family instead of appointing a legal advisor.

A question we are frequently asked is, what will happen to the inheritance if a child passes away before the parent?   

A competent Will writer would advise the parent, known as the testator, to include a substitute provision.

This makes it clear who their intended inheritance passes to – and in what shares – if a child dies first. However, we have witnessed a rise in homemade and simple wills that neglect to include this detail.

Omitting this provision can spark a dispute between the surviving children over what should happen to that share. Should it be split between the remaining surviving children – or should it be passed on to the children of the deceased sibling, the testator’s grandchildren? This is a hugely emotive issue and can cause a great deal of tension and arguments within families.

The answer is within section 33 of the Wills Act 1837.That section provides that where:

(1) A testator leaves a legacy to a child or remoter descendant (such as grandchildren or great grandchildren); and

(2) That person dies before the testator, leaving issue (meaning children or remoter descendants); and

(3) Those children or remoter descendants are living at the date of death

Then the legacy is passed to the next generation in equal shares.

This means that if a child has died before their parent, and if they have three surviving children of their own, those children receive their grandparent’s legacy in equal shares.

If an estate has already been distributed incorrectly to the surviving children, the personal representatives are liable for the loss. These representatives could claim the money back from the surviving children, but the children may be able to raise what is called  a ‘change of position’ defence – which protects them if they have already spent the money in good faith – and which could leave the personal representatives with a shortfall.

Such a situation is extremely damaging to a family that has already suffered a double loss, which is why taking early professional legal advice from experts is so important.

The administration of an estate is a complex and technical area. If you have any concerns, we always advise clients to have an initial chat with a member of our team so that disputes do not escalate and errors can be avoided.

For more information about any aspect of wills, probate or family law, call Jones Myers at our Leeds office on 0113 246 0055, our Harrogate office on 01423 276104, visit jm2023.jonesmyers.co.uk, email info@jonesmyers.co.uk or tweet us @helpwithdivorce