If a beneficiary pre-deceases the maker of a Will, what happens to that beneficiary’s share?

My mom was on my grandmother’s Will along with 2 other people. My mom died before my grandmother, who is still living. What happens to her share?

 

Asked on October 31, 2011 under Estate Planning, Washington

Answers:

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

Answered 9 years ago | Contributor

The answer to this question depends on just how the Will is worded. However there are some general rules. There is something in the law known as "lapse". Thjis takes effect when the beneficiary of a Will predeceases (dies before) the testator (the maker of the Will) the gift is invalidated. It is then distributed as provided for in the "residuary clause" of the Will (i.e. the clause that reads, "All the rest, residue and remainder of my estate go to X"). 

In response to this, most states have enacted what are known as "anti-lapse" statutes.  Such statutes "save" the gift (i.e. the bequest) as if it had been made to the deceased beneficiary's descendants.  In your case, for example, your mother's children would inherit. 

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

What you should do now is to consult directly with a probate attorney as to all of this. 


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