Is it customary that beneficiary decendancy go to direct heirs, by bloodline, of a trust when an heir dies?

Question

Said trust names children/descendants of deceased.  This is being questioned as the spouse is passed over, as an heir died before death of the trust owner.  As stated in the trust the children of the deceased become beneficiaries, not the spouse.

James Frederick · Answer

It is possible to do this. I am not sure it would be the most common way for it to go.

Geoffrey Germane · Answer

A spouse cannot be disinherited, so if the trust tries to disinherit the spouse that spouse can claim the "spousal elective share" which is 1/3 of the "augmented estate." A lawyer who practices in this area can help you determine what every heirs true rights are.

Edward Armstrong · Answer

It is not clear if the deceased's spouse was alive at his death.  If she was alive at his death and she was omitted from the trust for whatever reason she would have the right to elect to take against the estate but the election must be made rapidly.  If an estate was opened in the probate division of the circuit court (if the trust was contained in a will this would be the case).  That election would have to be made within six months of the grant of Letters Testamentary or Letters of Administration.  If the spouse has since died at the very least an estate should be opened for her.  The heirs of the wife need to hire counsel to protect their rights.

Ben Liu · Answer

This is not unusual.

Thomas Edward Gates · Answer

The Trust language controls all distribution.  The Trust must state that the children of a person who predeciess the Trustor may inherit their share of the distributions to the beneficiaries.

Neil Lehto · Answer

It may be customary for marital partners to arrange their financial affairs for the care and support of each other upon death. A trust, however, being one of several tools by which to do so, may direct that none of its assets be awarded to a spouse and that, upon her death, all of its assets be divided among his children only with nothing going to her children.

Darin Christensen · Answer

Yes, it is rare for a will to provide for the spouse of a deceased beneficiary.

Brian Haggerty · Answer

"Customary" doesn't matter much; the maker of a trust can say what he or she wants to say in terms of who takes. The question is a little confusing, but I'm gathering that one child of the trust-maker has passed away, and the trust calls for distribution to the deceased child's children, rather than to the deceased child's spouse. In my experience, yes, that is the more common distribution, keeping the wealth in the lineal family descent. Marriage is a little too dicey these days for many people.

Dara J. Goldsmith · Answer

A trust may provide that assets go to whomever the trustor intends, be it a spouse, charity, next of kin or an unrelated third person or entity.  The only thing customary is that the trustor decides who is to receive his or her trust assets.

Christine James · Answer

Generally, if a trust is created while the trustor has capacity and is not under undue influence the trustor can make whatever plan of distribution he or she sees fit.

Charles Perry · Answer

A distribution pattern leaving assets to children and/or descendants   of a named beneficiary instead of to a surviving spouse is quite   common, though there is nothing in California law that requires it.

Gerald Bagazinski · Answer

This is a complex question because it can happen. Does the surviving spouse have any rights. Possibly. She may have a dower interest in any real estate owned by the husband  she did not sign off on which was transferred to the trust or corporation during their marriage. A spouse may also be entitled to any 401(k) funds from a pension unless the spouse signed off on a transfer or change of beneficiary. Under Michigan law you have a spousal allowance, an exempt property allowance and a homestead allowance for all property required to be probated.

Frances Headley · Answer

Yes, the beneficiary designation you describe is the customary one followed by most trust settlers.  It is very unusual for the spouse of a child to be included but when desired that must be done by specifically naming them as a beneficiary since they are not included in the categories of children or descendents.

Mark T. Peters · Answer

It is not a question of customary, it is a question of what the testator wanted to do.  Perhaps he or she did not trust the spouse or felt that the spouse would be able to go on with his or her life and would not need the benefits of the trust.  You may also talk to the trustee about whether the trustee can pay for certain necessities of the children while living with the spouse, e.g. mortgage, utilities, schooling.

Daniel J. Pingelton · Answer

It's probably the most common pattern, but it all depends on what the person who created the trust desired. Unfortunately, sometimes a person will just follow a form pattern without someone explaining exactly what is happening. Hopefully that did not happen here. A spouse might be provided for it, for example, the person creating the trust was very close to him/her, and wanted the spouse to receive something regardless of whether she remained married to the descendant.

Mark Schaefer · Answer

Yes, this is customary. If spouses are to be included, the wording would have to specifically include spouses or refer to 'heirs' instead of 'descendants'. In Georgia, legally adopted children would also be descendants.

Edwin Fee · Answer

The creator of a trust has a great deal of flexibility in determining the beneficiaries of the trust, and the creator doesn't necessarily have to include his or her spouse as a beneficiary.

Jayne Sebby · Answer

The terms of the trust control the distribution of the assets.  If the spouse isn't included, he or she has no claim.

William Wilson · Answer

Generally a disposition is to an heir and then to their descendants should the heir predecease the descendant.

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Is it customary that beneficiary decendancy go to direct heirs, by bloodline, of a trust when an heir dies?

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