Q: What happens if a person named in a will dies before the person making the will does? How is it determined who gets his or her share?
A: It will depend on the circumstances. First, I would check to see what the will provides for in that situation. Wills are usually written with contingencies in place. I would be surprised if the will didn't have a provision addressing a beneficiary who predeceases the testator.
If you don't see any language that specifically spells out what happens in the event of a death of a beneficiary, you might see the term "per stirpes." Per stirpes is Latin phrase used in estate planning. Essentially, it means that if a beneficiary dies, his share would go his children by representation. If the will says "to Bobby, per stirpes" Bobby's share would go to his kids if he isn't alive to receive it himself.
If you don't see any language directing the inheritance after the death of a beneficiary, Indiana does have an anti-lapse statute that may apply. The anti-lapse statute essentially works like a per stirpes designation and directs a deceased beneficiary share to his children.
If there isn't any language addressing the situation in the will and the anti-lapse statute doesn't apply, I would assume the bequest would fail and the share would be distributed under the terms of the residuary clause contained in the will. Hopefully the will has some residuary language in it.
Q: How soon should an estate be opened following a death?
A: An estate doesn't need to be opened immediately following a death, but don't wait too long. Take the time you need to grieve your loss and once you are ready, call the attorney. I usually tell my clients that I don't need to be the first person you call following a death. I should be number 10 or 11.
Just keep in mind there might be administrative things that need attention such as paying utility bills and filing tax returns. Some of these things require action and shouldn't be ignored for too long. Also keep in mind wills need to be probated within three years of the date of death. Definitely don't take that long.
Thanks for the questions.