What happens when someone named in a Will dies before the person who makes the Will?
Get Legal Help Today
Compare Quotes From Top Companies and Save
Secured with SHA-256 Encryption
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 12 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 12 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.
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.