What happens if a beneficiary dies before the Testator?
Posted on | September 10, 2009 | 8 Comments
The word for today is “lapse.” If a Testator gives something to someone (the beneficiary) in his will, what happens if the beneficiary dies before the Testator?
The general rule is that if the beneficiary is a descendant of the Testator, i.e. his children or grand children, the gift goes to the beneficiary’s descendants. The same would be true if the beneficiary is a descendant of the Testator‘s parents.
If the beneficiary is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and goes to the person named as the residuary beneficiary. The residuary beneficiary is the person who the Testator names as the person who gets “all the rest and residue of my estate.”
If the residuary beneficiary dies before the Testator and is not a descendant of the Testator or of the Testator‘s parents, the gift lapses and the Testator dies intestate as to the property that would be in the residuary estate. It would then go to the Testator‘s heirs at law.
However, the anti-lapse statute, §68 of the Probate Code, provides “(t)his section applies unless the testator’s last will and testament provides otherwise. For example, a devise or bequest in the testator’s will such as “to my surviving children” or “to such of my children as shall survive me” prevents the application of Subsection (a) of this section.” In 2011, a court held that the testator’s will provided otherwise when he defined his residuary estate as ” the term “residuary estate” means all property in which I may have any interest (including lapsed gifts)…” No. 01-10-00118-CV. The court ruled that the gift did lapse and went into the residuary clause even though the gift originally went to the testator’s children who predeceased him but who had children surviving.
Pearls of wisdom: A poorly drawn will may mean that your property goes to someone other than the person who you want to receive the property.
The foregoing information is general in nature and does not apply to every fact situation. If you are concerned about inheritance laws, have an inheritance dispute, a property dispute or want information about contesting a will, we can help. Please go to our main site www.theprobate.net and use the contact form to contact us today. We would love to learn about your case and there is no fee for the initial consultation.
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8 Responses to “What happens if a beneficiary dies before the Testator?”
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July 10th, 2011 @ 12:19 am
what if the beneficiary of the trust (who died before the testator) had no direct descendents? Remaining kin of the beneficiary of the trust are several aunts and uncles – 3 are siblings of the testator and 1 is sibling of the testator’s deceased wife who was beneficiary’s mother who also predeceased the testator after the trust beneficiary died but before the testator?
August 9th, 2011 @ 6:33 pm
Is that true in a TX will? One of my sister-in-law’s beneficiaries of specific benefit has died. Does she need to change the will or will it go to the residual beneficiaries automatically?
August 11th, 2011 @ 7:01 am
If you need to ask a question about a Texas contested inheritance issue, go to our main site. http://www.theProbate.Net, select the contact us tab and ask your question.
August 11th, 2011 @ 7:03 am
If you have a question about a Texas contested probate matter, you should go to our regular site, http://www.TheProbate.Net and use the contact form. This blog is for general information about issues that arise on a daily basis.
August 13th, 2011 @ 6:15 pm
Look at our main site, http://www.TheProbate.Net
August 13th, 2011 @ 6:17 pm
Use the contact form at our main site for questions. http://www.TheProbate.Net.
December 19th, 2011 @ 1:53 pm
Hello – My grandmother passed away a day after my father. In her will she left half of her estate to him and the other half to my aunt, his sister. I know that my dad’s 1/2 would go to my and my sister as we are his decendents. However, are my grandmother’s bank accounts part of the estate? My aunt is a co-signer on the accounts does she automatically get the funds in the account or are the accounts part of the estate?
Thank you -
Kim
December 20th, 2011 @ 8:35 am
Kim, is this a Texas case? Our main website has a contact page where you can ask questions about Texas inheritance issues.