By Tim Barkley. September 2025.
It’s sad when folks trying to do the right thing mess up and hurt the ones they love the most.
Take, for example, the will that left everything “to my children, or their heirs, per stirpes.”
(Per stirpes is the term for distributing a child’s share to his or her children.)
One of the children had died before writing of the will, with no children. What the lady signing the will wanted was for the other children to receive equal shares. Because the predeceased child had been married at the time of his death, though, his spouse was his “heir,” so the surviving spouse of the deceased child was entitled to share in the estate along with the children who were intended to receive.
The correct language would have been “to my children, or their issue, per stirpes.”
Or the couple that had lived together for 40 years but were unmarried.
The house was titled “tenants in common,” and they had wills that passed their half of the house to the survivor. Because the house was not titled jointly, the surviving partner had to pay a 10% inheritance tax on the half of the house passing to her under his will.
Their jointly-titled bank accounts did indeed pass to the surviving partner as intended, but the survivor had to pay a 10% inheritance tax on ½ of the value of all bank accounts.
Note that if this happened under current law and if the couple had registered their domestic partnership with the Register of Wills, the tax would not have been due.
Or take case of the man who assumed that because he was married, his spouse would receive the entire estate, including the house that was just in his name.
But because he had children by a former spouse, they were entitled to share in the estate, so his wife had to pay off the estranged children in order to keep the house. That could have forced her to sell the house.
Or the “will kit” that provided a “will valid in all 50 states.”
The will was indeed valid, but the direction to “leave everything to my children” followed by the direction to “leave my firearms to my brother” created confusion and family tension.
Did he want the children or the brother to receive his valuable firearms collection? We were able to work it out, but that could have necessitated a trip to the courthouse and a hearing before the Orphan’s Court.
All of this could have been avoided with a visit with an attorney versed in estate planning. The time and expense are a good investment.
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Attorney Tim Barkley
The Tim Barkley Law Offices
One Park Avenue
P.O. Box 1136
Mount Airy
Maryland 21771
(301) 829-3778
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