[WSBAPT] Lapsed bequest - Per Capita Question

[James B. Dolan]

Colleagues:

 

Somewhat chagrined to ask the following . . . 

 

Decedent's Will states in Article pertaining to family:

 

"I am the single father of three children, A, B, and C.  The provisions of
this Will shall apply to my child(sic) named above, and their issue and any
children who may be hereafter born to or adopted by me."

 

Decedent's Will states in Article pertaining to disposition of property:

 

"I give all of my property and estate to be equally divided between my
children, A, B and C, per capita." (Emphasis in original.) That's it - no
other conditions regarding beneficiaries are stated.

 

A and B are alive, C predeceased decedent, leaving one child.

RCW 11.12.120

Lapsed gift-Procedure and proof.

(1) If a will makes a gift to a person on the condition that the person
survive the testator and the person does not survive the testator, then,
unless otherwise provided, the gift lapses and falls into the residue of the
estate to be distributed under the residuary clause of the will, if any, but
otherwise according to the laws of descent and distribution.

(2) If the will gives the residue to two or more persons, the share of a
person who does not survive the testator passes, unless otherwise provided,
and subject to RCW 11.12.110
<http://app.leg.wa.gov/RCW/default.aspx?cite=11.12.110> , to the other
person or persons receiving the residue, in proportion to the interest of
each in the remaining part of the residue.

 

The "per capita" language is giving me pause, and I have talked with two
different attorneys who have offered two different opinions.

 

Question 1: does estate get divided between A and B only (1/2 each), or does
estate get divided between A, B, and child of C (1/3 each)?

 

Question2: regardless of answer to Question 1, does C's child receive notice
of the probate?

 

Thank you for your insights.

 

Jim Dolan

 

===================

 

Jones Butler Dolan, PS

www.jbdolan.com

www.jonesbutlerdolan.com

 

Mount Vernon

 

P.O. Box 2784

415 Pine Street 

Mount Vernon, WA 98273

Telephone: 360-336-2939

Facsimile: 360-336-2949

 

Stanwood

 

P.O. Box 458

10027 - 269th Place NW (SR 532)

Stanwood, WA 98292

Telephone: 360-629-3833

Facsimile: 360-629-6253

 

 

 

 

 

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