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

UPDATED: Oct 31, 2011

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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


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

Answered 11 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. 

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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