Santa Clara Probate Lawyer: What Happens If Your Child Dies Before You?

The majority of people we see in our Santa Clara estate planning law firm name their adult children as beneficiaries of their estate plan. In most cases, this works well because children typically outlive their parents. But what happens when a child dies before the parent? What becomes of the inheritance that a parent plans to leave behind when the estate goes through the Santa Clara probate process?

The answer depends on whether or not you have a will or trust in place.

When You Don’t Have A Will or Trust

If you do not have a will or trust in place, then you don’t have control over what happens to your assets if a child dies before you do. Your estate will go into Santa Clara County probate when you die, and the state of California will decide how to divide the assets that would have gone to your child. The courts will name your “heirs at law,” which typically pass those assets down to your closest blood relatives. To be clear, your estate will still go through probate if you only have a will in place, but you will have a greater say over who gets what.

When You Have an Estate Plan

If you have a will and/or trust, then you have named beneficiaries. If one of the beneficiaries was a child who passed away, you’ll want to update your plan to name someone else who can inherit his or her assets. If you do not name alternate beneficiaries, when you die, that portion of your estate will go through Santa Clara County probate as though you had no plan in place at all. Again, the courts will decide who will receive the inheritance that was meant for an heir that has already passed away.

Fortunately, when you work with a qualified and experienced estate planning attorney, he or she will help you to name alternate beneficiaries from the start. Think about alternate beneficiaries as being your “Plan B” option. If something happens to your chosen beneficiary, or if your beneficiary simply declines to take their inheritance (hey, it happens), there will already be someone else of your choosing named who would inherit those assets. This ensures you keep control and the state never chooses where your assets will go.

Sadly, we’ve seen many estate plans created by less experienced attorneys where the issue of naming alternate beneficiaries was overlooked. In these cases, the “heirs at law” rule will be used to determine who will receive the assets. There are some people who choose this route. But if you want more control over who inherits from you, be sure to work with a knowledgeable estate planning attorney.

If you need assistance, we invite you to contact our Santa Clara Probate and Estate Planning Law Firm at (650) 422-3313 to schedule a consultation.