What happens when a beneficiary predeceases the maker of a Will?

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What happens when a beneficiary predeceases the maker of a Will?

My father passed away many years ago and my mom never remarried. Now she has passed away. She left her land holdings to us 4 kids.  Her Will also stipulated that if any of us predeceased  her, than that child’s holdings would pass to their children (her grandchildren). My sister died 1 1/2 years prior to my mother and left a husband and 7 adult children. My mother never changed her Will after my sister died to substitute the grandchildren, and my mother’s lawyer is arguing that my sister’s Will would supersede my mother’s, which I do not believe is correct.

Asked on June 2, 2011 under Estate Planning, Minnesota

Answers:

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

Answered 10 years ago | Contributor

There is something known in common law as "lapse".  This is what occurs when the beneficiary under a Will predeceases the testator (maker). In such a case a bequest is invalidated. It then reverts as provided for in the residuary clause of the Will (ie "All the rest, residue and remainder of my estate go to X"). 

In response to this, most jurisdictions have enacted what are known as "anti-lapse" statutes to address this situation.  Such statute "save" the bequest as if it had been made to the deceased beneficiary's descendants.  In your case, for example, the children of your deceased sister would inherit. 

However, a testator can prevent the operation of an anti-lapse statute by providing that the gift will only go to the named beneficiary (or their descendants) if that beneficiary survives the testator, or by simply stating in the Will that the anti-lapse statute does not apply.

Bottom line, without being able to review the language in your mother's Will it's hard to give a more definitive answer.  What you should do now is to consult directly with a probate attorney as to all of this. 


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