What happens when the testamentary trust beneficiary predeceases the testator?
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What happens when the testamentary trust beneficiary predeceases the testator?
Here’s the part in the Will: “I give, devise and bequeath one fourth of my residuary estate in trust to my trustee (cousin A), which trust is for the benefit of my mother (mother B) for her general welfare. At mother B’s death, all of the remaining principle and accumulated interest I give, devise and bequeath to cousin A.” Mother B died about a year before the testator, and the testator did not change the will. Does cousin A inherit one fourth of the residuary estate?
Asked on May 14, 2013 under Estate Planning, Virginia
Answers:
MD, Member, California Bar / FreeAdvice Contributing Attorney
Answered 10 years ago | Contributor
The problem herein is that if this is a will, simply citing to a trust doesn't make this a trust or create a trust. Let's assume this is a will and the trust language is wrong. If this is a will, then the issue will be whether the residuary clause includes any conditions like this. Generally, if the mother predeceased the testator, the entire bequest fails because it was during her life. However, this language seems to then include the next phrase that allows the remaining principle and interest to go to Cousin A. There is a good argument that Cousin A gets it and the bequest doesn't fail because it didn't give a timeline in terms of Mother B predeceasing testaor.
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