[WSBAPT] Lapsed bequest - Per Capita Question

[Julie Martiniello]

This is my understanding:

If the Will says *Per Capita,* then the distribution would go to A and B
equally. As Tom said, there is no lapsed gift because he put *Per Capita*
in his Will.

C's child must get notice of the probate as he/she is an heir at law by
right of representation and notice is required to all heirs at law in
Washington.

On Wed, Sep 14, 2016 at 11:55 AM, James B. Dolan <jbdolan at jbdolan.com>
wrote:

> 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 <http://www.jbdolan.com>*
>
> *www.jonesbutlerdolan.com <http://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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>
>
>
>
>
>
>
>
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-- 
-- 
Respectfully,

Julie A. Martiniello | Attorney | DIMENSION LAW GROUP PLLC
234 SW 43rd St, Suite MA | Renton, WA 98057
t: *206.973.3500 ext 104*   |   f: *206.577.5090*  | e: Julie*@dimensionlaw.com
<http://dimensionlaw.com/>* | www.dimensionlaw.com

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