What happens when a beneficiary dies before the maker of a Will?

Grandmother has Will, which provides that her estate be divided among 2 people. However, now 1 has passed. Does all go to living child or shared with deceased’s descendants?

Asked on December 5, 2011 under Estate Planning, Oklahoma

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

There is something known in common law as "lapse".  This is what occurs when the beneficiary under a Will predeceases the "testator" (maker). In such a case a bequest is invalidated. It then reverts as provided for in the residuary clause of the Will (ie "All the rest, residue and remainder of my estate go to X"). 

Most jurisdictions in response to this have enacted "anti-lapse" statutes to address this situation. Such statutes "save" the bequest as if it had been made to the deceased beneficiary's descendants.   

However, a testator can prevent the operation of an anti-lapse statute by providing that the gift will only go to the named beneficiary (or their descendants) if that beneficiary survives the testator, or by simply stating in the Will that the anti-lapse statute does not apply.

At this point, without being able to review the language in the Will in question, it's difficult to give a more definitive answer.  You should now consult directly with a probate attorney in your area as to all of this. 


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