Consider this scenario:
You have two children: Child A and Child B.
Child A has one child, who is your grandchild.
You give your estate equally to Child A and Child B in your Will.
What happens if Child A dies before you?
Under Queensland law, your grandchild may receive Child A’s share of your estate, depending on the terms of your Will and the circumstances. This is because section 33N of the Succession Act 1981 (Qld) can operate to pass a deceased beneficiary’s share to their surviving issue.
However, section 33N does not apply in every situation. The provision contains specific requirements and does not apply where a contrary intention appears in the Will.
What happens if a child dies before a parent in Queensland?
If you leave a share of your estate to your child and that child dies before you, their children may inherit that share under section 33N of the Succession Act 1981.
The rule can apply where:
- you leave property to your child under your Will;
- your child’s interest in that property does not end when they die;
- the gift is not a gift to your issue without limitation as to remoteness; and
- your child does not survive you for at least 30 days.
Where the provision applies, your child’s surviving issue can take their share as if your child had died intestate leaving only issue.
You can read the current Queensland Succession Act 1981, including section 33N, on the Queensland Government legislation website.
Example: Child A dies before you
Consider the original example:
- You have two children, Child A and Child B.
- Child A has one child.
- Your Will leaves 50% of your estate to Child A and 50% to Child B.
- Child A dies before you.
If section 33N applies and your Will does not contain a contrary intention, Child A’s surviving child may take Child A’s share of your estate.
In simple terms, this could mean your grandchild receives the 50% share that you originally intended to give to Child A, while Child B receives their 50% share.
This may reflect your intentions. But what if it does not?
Can I stop my grandchild inheriting if my child dies before me?
Potentially. Section 33N does not apply if a contrary intention appears in the Will, subject to the terms of the legislation.
For example, you may not have a relationship with your grandchild. You may instead want Child B to receive your entire estate if Child A dies before you.
Alternatively, you may have other reasons for wanting to determine exactly what happens to Child A’s share if Child A dies before you.
It is therefore important to carefully document your intentions when preparing or updating your Will. Your Will should clearly address what you want to happen if one of your beneficiaries dies before you.
Why does section 33N of the Succession Act matter?
Section 33N is designed to deal with situations where a beneficiary who is the Will-maker’s issue dies before the Will-maker.
It can prevent a gift to a child from simply failing when that child dies before the Will-maker. Instead, subject to the statutory requirements, the child’s surviving issue may take the child’s share.
Importantly, this is not an automatic rule that applies to every Will. The precise wording of the Will and the circumstances need to be considered.
Section 33N also provides that the rule does not apply if a contrary intention appears in the Will, subject to the limitations set out in the legislation.
What if I want my other child to inherit instead?
Imagine that Child A and Child B are your only children. Your Will gives them equal shares of your estate.
If Child A dies before you, you may want Child B to receive the whole estate rather than Child A’s share passing to Child A’s children.
If that is your intention, you should make sure your Will clearly reflects it.
Do not assume that a standard Will or a simple gift to your children will necessarily produce the result you expect if one of them dies before you.
Your solicitor can consider the terms of your Will and the relevant succession laws when documenting your wishes.
What should I consider when leaving an inheritance to my children?
When preparing your Will, it is worth considering what should happen if a beneficiary dies before you.
Questions to consider include:
- What should happen to a child’s share if that child dies before you?
- Should your grandchildren inherit their parent’s share?
- Should the surviving children receive a larger share instead?
- Do you want different arrangements to apply to different beneficiaries?
- Are there family circumstances that should be reflected in your Will?
- Have your circumstances or relationships changed since you last made your Will?
These questions can be particularly important where family relationships are complicated or where you have specific intentions about who should ultimately benefit from your estate.
What if I intentionally want to leave my children out of my Will?
With the ageing population and more people making Wills later in life, we are also seeing an increase in clients intentionally “skipping” their children, particularly where their children are already at retirement age, and leaving their estate to the next generation.
There are separate issues to consider when deciding to leave an estate directly to grandchildren or other members of the next generation.
These can include the structure of the gift, the circumstances of the intended beneficiaries and whether anyone may have a potential claim against the estate.
The issues surrounding this trend are the subject of another article.
Review your Will and your inheritance wishes
It is important to carefully document your intentions in your Will so you do not get caught out by statutory rules that may affect how an inheritance passes if a beneficiary dies before you.
Your Will should reflect what you actually want to happen to your estate. This includes considering what should happen if one of your children or another beneficiary dies before you.
If your family circumstances or intentions have changed, it may be time to review your Will and obtain legal advice about whether it still reflects your wishes.
Frequently asked questions
What happens if my child dies before me in Queensland?
Depending on the circumstances and the terms of your Will, your child’s surviving children may inherit your child’s share under section 33N of the Succession Act 1981. The statutory requirements and wording of the Will need to be considered.
Do grandchildren automatically inherit if their parent dies before the grandparent?
Not necessarily. Section 33N can cause a deceased child’s share to pass to their surviving issue, but the provision only applies where its requirements are satisfied. A contrary intention in the Will can also prevent the provision from applying.
Can I leave my child’s inheritance to someone else if my child dies before me?
Potentially. Your Will can contain provisions dealing with what should happen if a beneficiary dies before you. However, the wording needs to be carefully considered to ensure it reflects your intentions and operates consistently with Queensland succession law.
What is section 33N of the Queensland Succession Act?
Section 33N deals with dispositions to a Will-maker’s issue where the original beneficiary dies before the Will-maker. Subject to specific requirements, the deceased beneficiary’s surviving issue may take their share in place of the original beneficiary.
Should I update my Will if my child has died?
Yes. It is sensible to review your Will when a beneficiary dies. The death of a child or other beneficiary can affect how your estate will be distributed and may mean your Will no longer reflects your intentions.
Does your Will reflect your wishes?
Your family circumstances and intentions can change over time. A Will that once reflected your wishes may no longer produce the outcome you expect.
Understanding what may happen if a beneficiary dies before you is an important part of effective estate planning.
If you are concerned about how your estate would be distributed if one of your children dies before you, consider having your Will reviewed to ensure it clearly reflects your intentions.
Contact us to discuss your Will and estate planning needs.