What happens when a beneficiary of a Will dies before the maker of the Will?
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What happens when a beneficiary of a Will dies before the maker of the Will?
5 adult siblings are to inherit all cash and assets equally. 1 of the 5 is now deceased. Does his 1/5th portion go to his next of kin?
Asked on June 20, 2011 under Estate Planning, Mississippi
Answers:
M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney
Answered 12 years ago | Contributor
What happens is such a situation depends. "Lapse" can occur when the beneficiary under a Will predeceases the maker. In such cases the gift fails. Instead it is distributed as provided for in the "residuary clause" of the Will (i.e. the section that reads, "All the rest, residue and remainder of my estate goes to X"). However under the theory that the deceased would want the beneficiary's family to inherit, the majority of states have enacted "anti-lapse" laws. These laws save the gift as if it had been made to the deceased beneficiary's descendants. So, for example, the children of the deceased sibling would inherit in your case.
However, a testator (the maker of the Will) can prevent the operation of this law by providing that the gift only go to the named beneficiary (or their family) only if that beneficiary survives the testator. In other words, they must survive to inherit.
Bottom line, without being able to review the language in the Will its hard to give a final answer. What you should do now is to consult directly with a probate attorney as to all of this.
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