Have you ever wondered what actually happens if an heir in a will has died when the inheritance is to be distributed?
This question may become relevant in two types of situations, as there is a difference between whether it is an heir or a legatee who has died.
A life heir may, for example, be the child of the deceased testator.
If one imagines that the testator leaves behind four children who are to equally share an inheritance of DKK 100,000, then each child will inherit DKK 25,000. If, on the other hand, one imagines that one of the four children has passed away before the testator, but leaves behind two children, then this means that the three children receive DKK 25,000 each, while the deceased child's two children take the place of the deceased child and inherit DKK 25,000, i.e. DKK 12,500 each. This distribution follows from the so-called "principle of succession".
A legatee is a person who is included in the will because the testator wanted the person to inherit a sum of money.
If in this situation one imagines that an inheritance of DKK 100,000 is to be equally divided between the testator's three children, but that at the same time a legacy of DKK 25,000 is to be paid to a legatee, then this will basically mean that the children should each receive DKK 25,000 and that the heir should also receive his legacy of DKK 25,000. If one imagines that the heir has died and no alternative beneficiary has been appointed, the situation is slightly different from the first one with the life heir. This is because the starting point in Danish law is that the appointment of a beneficiary is considered to be personal, which means that the heir's heirs do not take the place of the heir. In very special cases, however, it may be possible to conclude by interpreting the will that it was the testator's wish that the inheritance upon the heir's death should go to his life heirs, but this requires a lot of work. The starting point will then be that the DKK 25,000 that was to go to the deceased heir will instead go to the three children, who will each receive DKK 33,333 instead of DKK 25,000. However, this distribution may be shifted depending on the wording of the will and whether additional heirs have been included in the will.
It is therefore clear that there is a difference between a deceased life heir and a deceased legatee. In the latter case, it would be best for the testator to decide for himself what should happen to the inheritance that should go to the deceased legatee.
If you need to make a change to your will to include an alternative beneficiary, or if you have other questions about wills, please feel free to contact us.
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