Does the share of a deceased beneficiary go to her husband?

What happens if a beneficiary named in a will dies before the testator of the will? This question was recently asked of me by a reader. Here's the question:

"My father wrote a will long time ago and named my mom, my brother, my 2 sisters and I as the beneficiaries but unfortunately, one of my sisters died 10 years ago. Will her husband and her only son take her part and become beneficiaries? Her husband has got married right after my sister's death. Should my father delete my sister's name from the will if he does not want to leave money to her husband?"

There are two major considerations to keep in mind when looking at a situation like this. One is what the will says, and the other is what happens if the will doesn't address it.

Your father should take out his will and check what it says. The exact wording of a will always matters (which is why I don't really like people making their own wills). For example, if the will says your father leaves the estate to the four children "or the survivor of them", then your sister's share would be divided among the surviving three children. However, most people don't set their wills up that way unless their children are pretty young. You did say the will was made a long time ago so it's possible.

As another example, if your father's will says that a deceased child's share is to be divided per stirpes, the share would pass down to your sister's son.

Normally a will says that the share of a deceased child would be given to that child's children, simply because this is what most people choose. Also, in most places, this is what would happen under intestacy law if there were no will in place or the will didn't mention it.

Your sister's husband is not going to be entitled to your sister's share unless the will specifically says that he is. In my experience, most people choose to pass inheritances down through the family bloodlines and it's pretty rare that they leave a child's share to the child's spouse. Also, if the will doesn't mention what happens, there is no law that says he must get her share. Whether or not he re-married is not relevant.

When you take both of these considerations together, it seems unlikely that your sister's husband is going to get her share, but without seeing the will itself obviously I can't know for sure. This is important stuff for your father, for your siblings and for your sister's son. It's better to clear up questions now while your father is able to address them than to wait until it's too late.

A problem with some older wills is that the language can be archaic and hard to understand. This could be an impediment for your father as he reviews the document on his own. If your father finds that he really can't tell what the heck the will means on this question, he should make an appointment with a wills and estates lawyer to review his will. Ideally, I would like to see your father sit down with an experienced lawyer to explain what he wants to do with his estate and have the chance to ask whether his current will meets his needs. He would achieve peace of mind by knowing that the proper document is in place.

Keep in mind that wills laws and tax rules change over time and older wills should be reviewed from time to time to make sure they are still current. This will go a long way to ensuring that there will be no problems administering your father's estate when that time comes.

It also occurs to me that if he made his will such a long time ago, he might not have made a Power of Attorney or a health care directive. Maybe this is the time to re-visit all of this. It's great that all of you are discussing these issues as a family and that you seem prepared to help your parents get everything into place. I strongly urge your father to see an experienced lawyer and talk all of this through.

Does intestacy work differently in different provinces?

Intestacy refers to the way a deceased person's estate is distributed if that person did not leave a Will. Every province and territory in Canada has laws that describe who is to get the estate of an intestate person, and in what proportions. The law is not the same everywhere.

Most provinces, including Alberta, have a system that's sometimes called the "per stirpes" system. Manitoba, for example, is different and has a "per capita at each generation" system. The per stirpes system passes down a share through the bloodline of an individual to succeeding generations. The other system passes down a share by finding the nearest generation that has at least one person surviving, and giving the share equally to the people in that generation. I find the easiest way to understand the difference is to use examples.

If Wanda dies without a Will and has two children, Ian and Florence, under both systems her children would share her estate equally. But what if Ian had died before Wanda, and left two children of his own?

Under the per stirpes system, Florence would get 50% of the estate and Ian's children would share his 50%, each getting 25% of the estate. This is because Ian's share is being passed down through his bloodline.

Under the nearest generation system, Florence would get the whole estate and Ian's children would get nothing. This is because the nearest generation to Wanda that has anyone surviving is Florence's generation, and she is the only person alive in that group.

What if Wanda died, but both Ian and Florence had died before she did? Let's say that Florence had one child. Under the per stirpes system, Ian's 50% share goes equally to his children so they each get 25%. Florence's child takes Florence's 50%. Again, each share follows the bloodline of the person.

Under the next generation system, there is nobody left in the first generation, since Ian and Florence are gone. Then we look at the next generation and we see that there are three survivors, those being Ian's two children and Florence's one child. These three would each take an equal share of the estate, or 33%.

Remember that these are the rules on intestacy, so they are the default system for those who don't make Wills. You can set up whatever arrangements you think are fair by making a Will.