Do You Have to Divide an Estate to Include the Children of a Deceased Brother?

by Michael Butler

When a person passes away, his estate is divided among his heirs. The person responsible for this is called the "executor" or a "personal representative." In some cases, it might be necessary to include a deceased brother's children. It depends on whether the deceased left a will, who the surviving family members are and the laws of the state.

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Estate

The estate is all of the property the deceased had at the moment of death. Some items may automatically transfer at the time of death, such as a payable-on-death bank account, and are therefore not part of the estate and subject to division. The executor or personal representative divides everything else either according to instructions in a valid will or by using the intestate succession statutes of the state in which the deceased resided. This process is overseen by a probate court.

Wills

If the deceased left a valid will that bequeaths property to the children of his deceased brother, the estate must be divided to include them. Ordinarily, the exact property named in the will should be given to these nieces and nephews. However, if that is not possible because of debts of the deceased that have to be paid or because a surviving spouse elects to take a different share than left to her in the will, the probate court will attempt to divide the estate to include the nieces and nephews proportionally.

Intestate

If a person dies without leaving a will, or if the will is invalid, the person is said to die intestate. If there is an estate that needs to be distributed to heirs, a probate court will appoint a personal representative to oversee that distribution. The representative will need to use the state's laws of intestate succession to determine how to divide the property. In most states, a surviving spouse gets the full estate or the largest percentage. The deceased's children are second in line. The Uniform Probate Code uses a formula based on the total amount of the estate and the parentage of the children to determine the shares of the spouse and children.

Nieces and Nephews

If someone dies intestate and has no surviving spouse, children, grandchildren or direct descendants further down the line, the estate goes to any surviving parents of the deceased. If the deceased doesn't have any surviving parents either, the estate is divided equally between siblings. If one of the siblings is deceased, his share goes equally to his descendants. Thus, in order for the law to require the estate division to include the children of a deceased brother, the person must have died without a will, spouse, children, grandchildren or parents.