What happens when someone named in a Will dies before the person who makes the Will?

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What happens when someone named in a Will dies before the person who makes the Will?

My father-in-law was executor to my aunt’s Will. My father died 6 weeks ago and then my aunt died without having time to get the Will changed. Who is the next heir since my father is not here. Would it be his wife or would it be his kids?

Asked on July 30, 2011 Missouri

Answers:

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

Answered 9 years ago | Contributor

An executor is a person named in Will to look after the estate and distribute the assets as directed in the Will; they have nothing to with choosing who inherits. If an executor pre-deceases (dies before) the maker of a Will, that does not invalidate it. In other words, the Will remains in full force an effect. The only thing different is that a new executor needs to be appointed. If the Will did not mention a contingent executor (i.e. back-up)  then the probate court appoints a replacement. At that point the new executor administers the Will accordingly to its terms. So whoever is named as beneficiary still inherits.

If your father-in-law was the only beneficiary, then his estate would take his place and it inherit your aunt's estate. His estate would be whoever is named as a beneficary in his Will. If he died without a Will, then his heirs would inherit. Typically under most state laws it ranges from, 1/2-1/3 to the surviving spouse and the remaining 1/2-2/3 to the children.

Note:  There are only "heirs" if a person dies without a Will; there are beneficiaries if a person dies with a Will.

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

Answered 9 years ago | Contributor

An executor is a person named in Will to look after the estate and distribute the assets as directed in the Will; they have nothing to with choosing who inherits. If an executor pre-deceases (dies before) the maker of a Will, that does not invalidate it. In other words, the Will remains in full force an effect. The only thing different is that a new executor needs to be appointed. If the Will did not mention a contingent executor (i.e. back-up)  then the probate court appoints a replacement. At that point the new executor administers the Will accordingly to its terms. So whoever is named as beneficiary still inherits.

If your father-in-law was the only beneficiary, then his estate would take his place and it inherit your aunt's estate. His estate would be whoever is named as a beneficary in his Will. If he died without a Will, then his heirs would inherit. Typically under most state laws it ranges from, 1/2-1/3 to the surviving spouse and the remaining 1/2-2/3 to the children.

Note:  There are only "heirs" if a person dies without a Will; there are beneficiaries if a person dies with a Will.


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