What Happens When One of the Heirs in a Will Dies?

By John Cromwell

When a person plans for their estate, she generally identifies which people she wants to receive her property in her will. However, there are times when a beneficiary named in a will dies before the drafter of the will does. What happens to the property the deceased beneficiary was supposed to receive depends on the will and probate code of the state where the drafter of the will lived.

Well Drafted Wills

A well drafted will addresses what should happen to certain property in the estate if the first named beneficiary dies before the drafter of the will. This issue is normally addressed by the will naming an alternative beneficiary. For example, a woman wants to leave her house to her husband. However, she realizes there is a possibility that her husband may die before her and in that set of circumstances she would want the house to go to her daughter. She could include a provision like this in her will: “My house to my husband; if my husband predeceases me or disclaims this property, my house goes to my daughter.” If a will contains such a provision, the property that would have gone to a deceased heir must go to the alternative beneficiary.

Traditional Response

If a will does not provide for any alternative beneficiary, the law of the state determines who gets the property the deceased heir would have received. In some states, when an heir dies without the will naming an alternative, the gift “lapses.” This means that the property the deceased heir would have received is included with all of the other assets that the will did not specifically transfer to other named beneficiaries. These assets are known as the residuary of the estate. Generally, the will identifies either a beneficiary or beneficiaries who receive the residuary of the estate.

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Anti-Lapse Statute

An anti-lapse statute is a provision that prevents property that would have gone to a deceased beneficiary from being included in the residuary of the estate. Generally, for an anti-lapse statute to apply, the deceased beneficiary must be related to the person who made the will. States that have anti-lapse statutes allow the descendants of the predeceased beneficiary to receive the property that would have gone to the heir. For example, Sally left her brother John a car in her will. John has a daughter, Erica. If John dies before Sally, and Sally doesn’t change her will, Erica would get the car if there is an anti-lapse statute.

Different Anti-Lapse Standards

Anti-lapse statues may have varying degrees of applicability, depending on the state. For example, some states may only protect bequests that were made to children or grandchildren of the drafter of the will; property that was left to any other deceased beneficiary would be included in the residuary of the estate. More expansive anti-lapse statutes protect assets that were given to any beneficiary that was related to the will drafter by blood or adoption. This would include siblings, nieces or uncles.

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California Law Concerning Last Wills When a Beneficiary Is Deceased


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