By Fredrick P. Niemann, Esq., of Hanlon Niemann, a New Jersey Estate Planning Attorney

I was recently asked the legal significance of a Will that identifies a beneficiary (a child) who has since died but the Will is silent whether his descendants (children, grandchildren) become his substitute beneficiary.

In other words, if the Will is silent and does not specify whether descendants of a deceased beneficiary receive their deceased parent’s interest, do the children forfeit their interest in the estate and if so, who becomes the new beneficiary?   Interesting question isn’t it?

I researched New Jersey’s Probate laws and found an interesting answer, one that I found a little bit surprising.  Title 3B of the New Jersey Statute(s) no longer provides for the children and descendants of a deceased beneficiary to take their parents/grandparent’s share by representation. The term “per stirpes” (which means children of the deceased named beneficiary) was eliminated in 1978 and in 2005 the presumption that the maker of the Will or Trust intended to leave the inheritance to the children of the named beneficiary was changed to what they call the “per capita” system. “Per capita” means the inheritance goes only to the named beneficiary or class of beneficiaries and not surviving children and descendants.   However, use of the term “per stirpes” if specified in the Will (or inferred from the language of the Will) which shows an intent by the decedent to have his/her children as beneficiary will take priority over other unnamed beneficiaries.

A common example of the above is when a parent leaves their estate to a child(ren) but does not specify what happens if the child predeceases him or her.   The law presumes that the maker of the Will did not intend for the deceased child’s children (grandchildren) to receive the share of the deceased child rather the share goes to the surviving children (siblings) pro rata. Again, remember there may be other indications in the Will that it was the intent of the decedent to leave the share of the deceased beneficiary to his or her descendants but if the Will is silent then it is tough luck for the children of the deceased beneficiary or the grandchildren.

To discuss your NJ estate planning matter, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at Please ask us about our video conferencing consultations if you are unable to come to our office.