The deer in the headlights moment
September 1, 2023 | View PDF
When people come to see me for the first time, they are usually emotionally prepared to deal with the unpleasant question of what happens to their stuff when they die. I mean, really, nobody schedules an appointment with an estate planner to have a will or trust done, and is shocked to be asked that question. That’s why you’re there, right?
What they are not always prepared for is a follow-up question: What happens if any of your children has died before you?
Some people are ready for that one, but others get that shocked, deer-in-the-headlights look. Nobody wants to think about one of their children dying before them. It is a horrible thing, and most people, if they have ever thought about it, promptly pushed it to the back of their mind and decided that such a thing would never happen. It just can’t. It’s too terrible to contemplate.
But in order to do estate planning, you have to answer that question. There is no way to write up a will, or a trust, without making that decision.
For example, let us say that I write up the document and it says, “I leave my estate to my children, in equal shares”. That language has a specific legal consequence. If any of your children dies before you, it would just go to your other children. At least, that is the consequence if the thing I am writing is a living trust. If I put the same words into a will, Alaska has an “anti-lapse statute” which says that unless I very specifically say otherwise, the share of that deceased child goes to their children. But in a trust, it would not go to their children (your grandchildren), it would just go to your remaining children.
But let us say that, instead, I write it as “I leave my estate to my issue, in equal shares”. Your issue means your descendants. Now, regardless of what kind of document this is, if one of your children dies, it goes to their children. Incidentally this might be called “right of representation” or a per stirpes distribution. I threw that in to see if the Senior Voice editors are paying attention, because spellcheck programs are always trying to change that to “stripes”.
So depending on the wording you use, and what kind of document you put it in, you are always making that decision, one way or the other. But what if you don’t want either one? What if you want Buford to get his share if he survives, but you don’t want Buford Junior to get a share if Buford doesn’t survive you. Instead you want it to go to his other kids. Or maybe you want to include a stepchild who would not normally be included. Or any number of other variations. That’s easy—you just have to be specific about what is to happen.
For that matter, I have been assuming throughout that you want the estate to go to your children. Maybe it’s not your children, it’s your nephews and nieces, or your best friend. Different wording, but the same question. You still have to say what happens if they don’t survive you.
There are a lot of perfectly good answers to this question. There are also a few answers that don’t work. Sometimes people say, “Can’t that just be decided later?” As I said, there is no way not to answer that question. One way or the other, the words I put into that testamentary document are going to have to resolve that issue.
Or my other favorite: “Can’t I just leave it up to the kids?” No. They’re gone at that point. You have to decide.
It isn’t easy to make these decisions. But as that great poet, A. E. Hausman put it:
While the sun and
Luck’s a chance but
I’d face it as a wise
And train for ill and
not for good
In the meantime, if your eyes glazed over after the second paragraph, and you don’t remember a thing you read after that, take a deep breath, throw back a scotch and soda, and read it again. It isn’t pleasant, but you have to face it.
Kenneth Kirk is an Anchorage estate planning lawyer. Nothing in this article should be taken as legal advice for a specific situation; for specific advice you should consult a professional who can take all the facts into account. Do not drink scotch while driving or operating heavy machinery. Do not drink scotch if you are allergic to scotch or any of its ingredients.