What happens when a beneficiary pre-deceases the maker of a Will?

UPDATED: Apr 4, 2011

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What happens when a beneficiary pre-deceases the maker of a Will?

Mother left home to 2 sisters, both of whom are dead; 1 sister had children, the other didn’t. The sisters also had 3 sisters and 2 brothers. All are dead except 1 brother. Who does the estate belong to – the brother or the siblings (i.e. their children) listed in the Will?

Asked on April 4, 2011 under Estate Planning, North Carolina


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

Answered 12 years ago | Contributor

At common law, there is something known as "lapse".  This occurs when the beneficiary under a Will predeceases the testator (maker); in such a case the bequest is invalidated.  Instead it reverts as provided for in the residuary clause of the Will (ie "All the rest, residue and remainder of my estate go to X").  In response to this, most jurisdictions have enacted an "anti-lapse" statute to address this situation.  The anti-lapse statute "saves" the bequest as if it had been made to the deceased beneficiary's descendants.  In your case, for example, the children of the deceased ister would inherit.  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.

Bottom line, without being able to review the language in the Will its hard to give a definitive 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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