Last Will and Testament
Hypothetical #1: When Aunt Minerva died, she had no husband or children, but did have a valid Will, which was probated. Her living descendants were her niece, Angela, her nephews, Barry and Charles. They were over the age of 18 years old at the time of Aunt Minerva’s death. When Aunt Minerva died, Angela had two children, Donald and Evelyn. If Aunt Minerva’s Will stated that all of her estates were to be distributed to her then living descendants, per stirpes, then her niece, Angela, and her nephews, Barry and Charles each would receive a 1/3 share of her estate. Angela’s children, Donald and Evelyn, would not receive anything from the estate. Pursuant to Florida Statute 731.201(9), a lineal descendant or descendants means “a person in any generational level down the applicable individual’s descending line.” Adopted children come within the definition of lineal descendants. The term “descendant” is synonymous with the terms “lineal descendant” and “issue” but excludes collateral heirs. Florida Statute 731.201.
Hypothetical #2: In the event, Aunt Minerva’s Will stated that all of her estates were to be distributed to her then living descendants, per stirpes, and at the time of Aunt Minerva’s demise her niece, Angela, had predeceased her, then Barry and Charles would each receive a 1/3 share of her estate, and Angela’s 1/3 share would be distributed to Donald and Evelyn, who would each receive a 1/6 share. Florida Statute 732.103 and Florida Statute 732.104.
Hypothetical #3: In the event, Aunt Minerva’s Will stated that all of her estates were to be distributed to her then living descendants, per stirpes, and at the time of Aunt Minerva’s demise, Barry had predeceased Aunt Minerva and he left no surviving descendants, then Angela and Charles would each receive a one-half share of Aunt Minerva’s estate, and Donald and Evelyn would not receive anything from the estate. Florida Statute 732.103 and Florida Statute 732.104.
Hypothetical #4: In the event, Aunt Minerva’s Will stated that all of her estates were to be distributed to her then living descendants, per stirpes, and at the time of Aunt Minerva’s demise Barry, Charles and Evelyn were her only surviving descendants because Angel and Donald predeceased Aunt Minerva. Then Barry and Charles would each receive a 1/3 share, and Evelyn would receive the 1/3 share that would have been left to her mother, Angela. Florida Statute 732.103 and Florida Statute 732.104.
Hypothetical #5: In the event, Aunt Minerva’s Will stated that all of her estates were to be distributed to her then living descendants, per capita to her niece, Angela, and her nephews, Barry and Charles, who were over the age of 18 years old at the time of Aunt Minerva’s death, then the three beneficiaries would share a 1/3 distribution of her estate. “Per capita” means taking by a total number of individuals. All of the living members in the group of beneficiaries listed in the Will would receive an equal share. However, if one of the members of the identified group of beneficiaries had predeceased Aunt Minerva, then no share is created for the predeceased beneficiary, and the two remaining beneficiaries would inherit half of Aunt Minerva’s estate.
“Per stirpes” is more commonly used in Will language because it provides for any heirs of any beneficiaries that predeceased the grantor to receive the predeceased beneficiaries’ share of the estate. In the event you plan to use “per capita” language in a Will, then you will need to be sure your estate planning addresses any generation-skipping shares of the estate that may be created by this type of distribution. If the grantor leaves shares of his or her estate naming specific grandchildren and/or great-grandchildren as beneficiaries through per capita language in the Will, and the testator’s children survive him or her, the generation-skipping transfer tax may be triggered on the grandchildren’s or great grandchildren’s share of the estate. I.R.C. Sections 2612, 2613, and 2652.
It is extremely important to discuss your estate planning documents and the specific language to be added to any of your estate planning documents with your estate planning attorney to void any unnecessary tax consequences on your beneficiaries inheritance and to avoid unintentionally leaving out any of your desired beneficiaries in your estate planning documents.