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Monday, February 6, 2017

If a will leaves money to "my children or the survivors of them", who exactly are the survivors?

If a will says that a gift is left to "my children or the survivors of them", who is meant by "the survivors of them"? If I leave a sum of money to my siblings "or the survivors of them", who exactly are those survivors?

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.

5 comments:

  1. Hi,
    A question came up among some friends recently related to this.

    If a person dies who as paid into CPP their whole life but dies before retiring (and therefore before collecting) does the person's CPP payout benefits go to the next of kin, a person in the will, or does no one get them?

    If, say, a spouse does get the benefits, does the spouse get them in payments same as the deceased until the spouse dies, or does the spouse get a lump sum?

    If the spouse is entitled to receive the benefits in lieu of the deceased, could the deceased have willed them instead to someone else, a grown child, say?

    And would it vary by province even though CPP is federal?

    ReplyDelete
    Replies
    1. The deceased can't give away CPP benefits in his or her will.

      There is a survivor's benefit that's available for next of kin, whether that it a spouse or a child. There are guidelines for who can apply on the CPP webpage. It'a an ongoing monthly payment, not a lump sum.

      There is a small lump sum ($2500) available to the estate. This is the death benefit.

      Lynne

      Delete
    2. Thank you! Your time in writing is greatly appreciated.

      Haha, this should settle some argument! I think people confuse the terms "death benefit" and "survivor's benefit".
      Two very different things.

      Thanks again! :)

      Delete
  2. A minor is designated to receive a named-gift with the value of approximately $200 (heirloom necklace). Is the Executor required to notify the Office of the Children's Lawyer, send them a copy of the will etc.?

    ReplyDelete
  3. Hi Lynne,

    I am writing to you very confused I am living in the Caribbean my uncle lived in Canada he passed away April of 2016. He was never married have no kids in Canada and lived alone in Canada but do have kids before outside of Canada who he left behind many years ago.He didn't leave any will his death was very sudden but his assets are left behind.

    Unfortunately everyone I ask for advice have not been able to put me on the right part. Reason being for my family not being able to start any procedures. My uncle was responsible he took care of his mother and father back here in the Caribbean how are we to go about retrieving back what he left behind?

    We do have a copy of the death certificate because I had to get it sign in order for his body be turn over to the funeral home in Canada to be buried. I will really appreciate if you can set us on the right part here. Thank you so much .

    Faith!

    ReplyDelete

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