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

UPDATED: Jun 20, 2011

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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


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

Answered 11 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. 

IMPORTANT NOTICE: The Answer(s) provided above are for general information only. The attorney providing the answer was not serving as the attorney for the person submitting the question or in any attorney-client relationship with such person. Laws may vary from state to state, and sometimes change. Tiny variations in the facts, or a fact not set forth in a question, often can change a legal outcome or an attorney's conclusion. Although AttorneyPages.com has verified the attorney was admitted to practice law in at least one jurisdiction, he or she may not be authorized to practice law in the jurisdiction referred to in the question, nor is he or she necessarily experienced in the area of the law involved. Unlike the information in the Answer(s) above, upon which you should NOT rely, for personal advice you can rely upon we suggest you retain an attorney to represent you.

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