Heirs vs. Descendants
‘Heirs vs. Descendants’ sounds like an oddball method of dividing teams for a family softball match. Or maybe the sequel to a cartoon movie. What you don’t want it to be is the legal caption describing the parties litigating your estate because the terms of your will or trust were ambiguous or not what you had intended. I’ve reviewed both a will and a trust over the past few weeks with similar provisions that used words that did not reflect the true intention of the individual. In each case, the instrument provided essentially as follows:
“To my children in equal shares, but if a child predeceases me then the deceased child’s share shall be distributed to that child’s heirs“.
That sounds fine at first glance, right? Sounds very legal? The problem is it didn’t reflect what the individual actually wanted to happen. The definitions:
Descendants (n.): A person’s children, grandchildren, great-grandchildren, and other offspring in the direct line of descent.
Heirs (n.): The individuals who by operation of (intestacy) law inherit the property of a decedent who dies without leaving a valid will in a particular jurisdiction (e.g. those who inherit in an estate when there is no Will).
These definitions are not identical. They are not interchangeable terms.
Example: Parent has Child A and Child B. Child A predeceases Parent leaving a surviving spouse and 3 children. Who are A’s heirs? The answer will depend on the applicable jurisdiction. In Illinois, A’s heirs would be A’s surviving spouse (50%) and A’s 3 children (50%). In some other states, A’s surviving spouse would be A’s sole heir.
Who are A’s descendants? That’s easy and doesn’t vary by jurisdiction: A’s children.
Returning to the ‘heirs’ language in the reviewed Wills under this example: The share for predeceased Child A is going to pass to Child A’s heirs — A’s surviving spouse (and A’s children in Illinois and some states). Is that what Parent wanted or expected? Not in the cases I reviewed, and probably very rarely. Parent almost always wants the share of a predeceased child to pass to the predeceased child’s children (Parent’s grandchildren), or possibly back to Parent’s surviving child, but almost certainly not to a child-in-law.
So what should the Will have provided instead if Parent wanted predeceased child’s share to pass to that child’s descendants? There are various ways, but something to the effect of:
“To my children in equal shares, but if a child predeceases me then such deceased child’s share shall be distributed per stirpes to that deceased child’s then living descendants“.
Years ago, we saw a similar ‘heirror’ (sorry, I couldn’t resist) in retirement account beneficiary designation forms provided by a major financial institution. I believe the form said “per stirpes to my heirs”. Yikes! We contacted them and they eventually corrected their form, but it shows that sometimes even professionals interchange terms that may seem like they say the same thing, but in practice provide very different (and unintended) results.