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A friend of mine is engaged in a lengthy probate process over her inheritance from her parents with her brother as the executor. Without getting into details of why it's been so protracted, it's been going on for well over a year now with all of the attendant drama and legal measures. Her health has been poor, and recently she's been worried that she might die (with attendant nightmares of parties involved plotting to hasten the situation), effectively turning the entire inheritance over to the remaining sibling (which yes, the inheritance wouldn't do her much good there, but her plans, including her will, involves disbursing her assets to various friends and charitable interests).

So, my central question is, does the death of an inheritor during the probate process result in their "share" reverting to the remaining inheritors? This is a Pennsylvania case, for the sake of state law.

2 Answers 2

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The common law rule was that to inherit you have to outlive the decedent from whom you are inheriting, and that the inheritance would pass to your estate if you died before distribution was made.

Statutes in some jurisdictions provide that someone must survive for a longer period than that to be eligible to inherit, often five days, in order to simplify the factual issues in the common situation of a joint accident. Pennsylvania is one such state.

But a will or trust can deviate from the default rule, and in U.S. practice, driven by federal estate tax laws, it isn't uncommon to require someone to survive the decedent by at least six months to inherit from them under an instrument.

In this case, where more than a year has passed since the death, the inheritance would not lapse for these reasons.

It also isn't uncommon for a trust, either established during life, or established at death, to provide that distributions from the trust are made at the discretion of the trustee and to require in those cases that the person receiving the distribution also be living at the time of the distribution. These trusts also typically contain specific provisions that spell out the rights of a beneficiary who dies before the trust is fully distributed.

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    Ah, both of her parents have deceased. The probate process is just dragging on.
    – SCD
    May 4, 2022 at 19:30
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No, at least not in the jurisdictions I know. If she dies now, it's the same as if she had died before the parents: Her share will be distributed as if she had lived, which means it will primarily go to her children and spouse, or to whoever she had given it in her will. If she does not have children (and has not written a will on her own), then, depending on local inheritance laws, the assets may fall back to her siblings, which could then be the group that started the fight.

Clarification

Jurisdiction: (the link to the pensylvania website in the other answer interestingly shows very similar rules)

Let's assume this family tree:


Alice -o- Bob
       |
   --- | -------------
   |        |        |
Charlie   David     Me  -o- Eli
                         |
                        Frank

Also assume no one has left an explicit will.

Now if the later of the parents (Alice or Bob) dies, and all their children are still alive, they inherit in equal parts. But if I had died before Alice the share that would have gone to me is going to Eli and Frank. Charlie and David get the same amount of our parents' assets, regardless of whether I live at the time of their death or not. (Unless of course, I had neither children nor a spouse)

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    It may well depend on the specific terms in the will. Per capita vs per stirpes could mean very different things.
    – Jon Custer
    May 4, 2022 at 14:26
  • @JonCuster Certainly. Some parts of the will of the deceased may overwrite this (depending on country), but it doesn't look like the deceased wanted that the OPs friend or her children didn't get anything.
    – PMF
    May 4, 2022 at 16:49
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    "If she dies now, it's the same as if she had died before the parents:" Are you sure that is what you meant to write? as written I think it is incorrect. May 4, 2022 at 19:33
  • @DavidSiegel: I believe you are labeling this snippet of PMF's answer as incorrect: "if she had died before the parents: Her share will be distributed as if she had lived". (There's a borderline tautology in the answer, it claims A is the same as B because B is the same as A, where the logic is sound but the premise has problems.) Would it not be possible to go either way, depending on whether "per stirpes" was designated?
    – Ben Voigt
    May 4, 2022 at 22:25
  • @Ben Voigt Yes, a will can specify any set of contingencies and outcomes that the testator pleases. It could say "I leave $X to B, or to B's descendants if B dies before me." It could say anything. But in the simplest case, if it says "I leave $X to B" and nothing more, then in most US states B gets nothing if B dies first and B's heirs do not get that bequest, the residuary heir gets it. At least that is my understanding. I could be mistaken, and I think some states have a different default rule. May 5, 2022 at 0:36

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