The act of making a Last Will and Testament can be fraught with emotion for obvious reasons. It is not uncommon for people to specifically exclude someone who might otherwise be a “natural object of their bounty” (see my prior post here), such as a child, grandchild, etc… for a variety of reasons. But if you are the person being excluded, be aware that there are circumstances in which you might still inherit, short of a full-blown Will contest.
We have discussed the legal concept of intestacy in prior blog posts. If someone dies with a Will, they are said to have died “testate;” and if without a Will, they have died “intestate.” New Jersey, like other states, has so-called “intestacy statutes” that control the disposition of a decedent’s property when the decedent dies without a Will. Those statutes establish a hierarchy of beneficiaries based on their relation to the decedent, with preference for surviving spouses, children and parents. Note that as addressed in a prior blog post, those rules would not apply to assets passing outside of a Will, whether by a beneficiary designation, which typically is the case for assets such as IRAs, 401(k)s and life insurance; and joint accounts and those passing by pay-on-death or transfer-on-death designation.
Intestacy statutes can also apply if a decedent has a Will but it does not effectively dispose of his or property. For example, Fred’s Will leaves all of his assets to his daughter. If Fred’s daughter predeceases him, the assets passing under the Will will be distributed by intestacy unless Fred has made a provision for what happens if his daughter dies first (a contingency any professionally-drafted Will should address). Let’s say Fred’s daughter has children (Fred’s grandchildren). In that case, the grandchildren would inherit under intestacy as Fred’s sole surviving heirs.
But what if Fred had a falling out with his grandchildren and expressly excluded them under the provisions of his Will? Are they out of luck? Maybe not.
New Jersey law expressly says that a decedent may exclude or limit the right of an individual or class to succeed to the decedent’s property passing by intestate succession. But what if the Will contained a rather typical provision that said Fred intentionally made no provision under his Will for his grandchildren for reasons best known to them? Is that enough to cut off the grandchildren’s right to inherit under intestacy? The answer is not clear, so it may be in the grandchildren’s interest to pursue their intestacy rights.
New Jersey law also has what is known as an “anti-lapse” statute which essentially provides that if property is to pass under a Will to a relative who predeceases the decedent, the descendants of the deceased relative inherit in his or her place. The statute makes no reference to whether the decedent indicated a contrary intention, so the grandchildren might seek relief under this provision as well.
The bottom line is inheritance rights are like any other legal rights- they must be vigorously pursued with the aid of competent counsel.
If you have any questions about this post or any other matters, please contact me at firstname.lastname@example.org.