In the last number of posts we have been looking at the issue of what would happen if you made a will leaving something to your child but (God forbid!) your child passed away before you. It is something you have to consider and we have dealt with this issue in the past number of blogs, which we link below.
You have a range of options to cater for this. This is because you can cater for this eventuality (even though you don’t want to think about it) by drafting appropriate clauses in your will. We call this drafting gift over clauses
One of the options in drafting a gift over clause is that you can leave the asset to the estate of the child. What this means is that they asset will be dealt with in accordance with the will of the child.
There can be pros and cons to this.
A child in making their will, will not have thought of them pre-deceasing their parent and what assets might arise in that case. So invariably the asset passing from you, will pass in accordance with the “catch all” clause in the will of the child. We call this catch-all clause, the “universal” clause or the “residuary” clause. However the residuary clause is generally a clause where you “dump” any remaining assets that you might not have dealt with in your main will. So the clause tends to be something that deals with remaining assets and not core assets. So, items in the residue, could be split various ways or could go one way. The contents of a residuary clause are various and there are no hard and fast formulations.
In all likelihood if a child is married the residue will pass to either children or a spouse.
If the child is not married, the residue may or may be left to relations. However it could be left to charity, to friends etc.
So the upshot is, is that while you have the flexibility, not many people pick the option of leaving an asset to the estate of a pre-deceased child. It tends to be somewhat unknown.
The only additional point to make is that there is a provision in law that states that if when you die, your child has died before you and on the date of your death that child has grandchildren living, then the gift that was due to your child will pass according to the childs estate/will. So, if you don’t deal with this issue of gift over, the effect could be the default effect, which is that it passes to your child’s estate.
Hope this helps and if you have any questions or queries on will drafting please let me know by contacting me at info@kerrywills.ie. Cheers. Colm Kelly
Here are the links to previous posts on this.
If your child dies before you – giving that gift to his or her spouse