Monday, February 6, 2017
If a will leaves money to "my children or the survivors of them", who exactly are the survivors?
Posted by Lynne Butler
This is a question that a reader asked recently on this blog, and I've also heard it in my office a few times lately. Since it seems to be one of those phrases that trips people up, I thought it would be a good idea to discuss it a bit and clear up the confusion.
Sometimes the phrase is misinterpreted to mean that "the survivors of them" refers to the children of the people named. It does not mean that. It's an easy mistake to make, since we are all used to gifts in a will being handed down through the generations. In this case though, the wording is specifically chosen to prevent the gift being handed down to children or anyone else outside the original group.
When we say "my children or the survivors of them" we mean "those of my children who are alive when I pass away, with nobody's spouse or children taking their share if they've already passed away". It's a last man standing concept. Only those of the original group who are alive on the specific day are included in the gift.
So, let's say I have three children, namely, Jack, Jill, and Joe, All of them are married and have kids of their own. My will says that I leave the sum of $75,000 to "my children or the survivors of them". When I pass away, if all of my children are alive, each of them gets $25,000. However, let's say one of them - let's say Jack - passed away before me. Now the $75,000 is divided between Jill and Joe, because Jill and Joe are the survivors of the original group.
The "survivors" are those who outlived the others to be alive when I pass away.
Let's say that all three of my children survive me so each is to get $25,000. Though all of my children were alive when I died, unfortunately Jack passed away a couple of months later and didn't live long enough to actually receive his $25,000. In that case, Jack's children DO get his share. This is because Jack was alive on the day I died so the money was his. He survived me.
Also part of the question is the clause in the will that says how long a beneficiary must outlive the testator in order to be considered a survivor. The traditional time is 30 days. I personally think that's too long and use a shorter time in the wills I draft. In my example in which I said that Jack survived me but died later, Jack must have died outside the time limit in the will. If, for example, my will says that someone must survive me by 30 days but Jack only survived me by two weeks, he would not be considered a survivor.
In a will, if a gift to a group is intended to be handed down to the children of someone in the group who passes away, the document should refer to the person's "children" or "issue", depending on the testator's intention.
If you're an executor trying to interpret a will of someone who has died, don't assume that you know what phrases mean. If you have even the slightest doubt, make sure you ask an experienced wills and estates lawyer. That should help prevent mistakes, delays and disputes.