[pribb1]

The will states, "Sell the house and divide it amongst the kids". There are 5 kids. One of the kids has passed away since the will was written. His widow is still alive and 2 of their 3 kids. 1/5 of the estate should go to whom? The deceased kids widow only. His two kids and to the widow of the deceased kid? I need to know the proper way to allot the 1/5 share. We're not talking about a lot of money here, $3600.00 to each kid. But want to do it properly.

[ScottGem]

I would distribute the 1/5th share to the 2 children of the deceased child.

[shygrneyzs]

This happened to my uncle and the estate was divided into 5th's - for each of his sisters. Since two sisters were deceased, their 5th went to the children of his sisters. So my two cousins got their Mother's share, while my two brothers and I received our Mother's share.
Two of my aunts fought it, wanting to disinherit my cousins and my brothers and myself, but the judge denied their claim.

[excon]

Hello pribb:

I would give the 1/5th to the widow. Why should she not inherit her husband's estate?

excon

PS> Frankly, what I offered is only my opinion. You really need legal advice. This division isn't a matter of opinion. It's a matter of law, and if you do it wrong, it's going cost you much more time and effort and possibly a lawsuit.

[Fr_Chuck]

It will depend upon state law of your state, if it is not specific as to if the division is to be made "per stripes" or "by head" two of the methods,
In one case the two grandkids of the deceased son would divide 1/5,
In the other case the two grandkids would get equal shares and all get 1/6.

So unless the will is specific which way, it will fall back to state law as to what method is used by your state if no will is there or if the will is not specified.

If this is in probate, the probate judge should know this, or the attorney helping with the division of property.

[ScottGem]

It doesn't seem the estate is large enough for probate. That will just eat into the estate. Unless one of the heirs plans on making a fuss, I'd go with my suggestion. Generally the widow would not get the money since its not part of the husband's estate, so it would bypass her and go to her kids.

[LisaB4657]

What you need to do is find an estate attorney who will give you a free consultation. The question you want to ask is "what is the law in this state when a will provides that the estate gets divided among the children, but the will does not specify whether it is per stirpes or per capita".

Let's say that the kids are A, B, C, D and E. A has already died and left two children, A1 and A2.

If the state's law assumes it is per stirpes then B, C, D and E each get 1/5 and A1 and A2 share 1/5. If the state's law assumes it is per capita then A1, A2, B, C, D and E each get 1/6.

The widow doesn't get anything since she is not a direct descendant of the person who died.

[Fr_Chuck]

I know excon, we just had a class on this law about two weeks ago and I always felt the widow was losing out on something in this system, no system gave her anything.