If you’re dealing with a will that leaves property to someone who died before (or very soon after) the will-maker did, you must figure out who inherits the property. Sometimes the will itself tells you; in other cases, you must look to your state’s law.
If the gift was made to a group of people who are not individually named in the will but are part of a group—for example, “my children,” special rules apply when one group member dies.
Many wills state that beneficiaries cannot inherit unless they live for a specific amount of time after the will-maker dies. This time is called a “survivorship period,” and commonly ranges from about five to 60 days. For example, a will might say that “a beneficiary must survive me for 45 days to receive property under this will.”
If the will doesn’t impose a survivorship requirement, state law may. In some states, including all the states that have adopted a set of laws called the Uniform Probate Code, all wills are subject to a five-day survivorship period.
If neither the will nor state law imposes a survivorship period, then a beneficiary who survives just an hour longer than the will-maker would inherit. In that case, you would turn the property over to the deceased beneficiary’s estate, and it would go to the beneficiary’s own heirs or will beneficiaries.
If the will names alternates for the beneficiaries, it’s clear what happens to property if the first-choice recipient doesn’t meet the survivorship requirement: The alternate gets it. (Though even this can get a bit murky when gifts are left to a group of people.) For example, a will might say, “I leave my estate to my wife, Catherine Brown or, if she does not survive me, to my daughter Jessica Brown and my son Andrew Brown in equal shares.”
If the will does not name an alternate, or the alternate has also died, you have something called a “lapsed” or “failed” gift. Depending on state law and how the will is written, the property will go to either:
Some wills clearly state that lapsed gifts become part of the residuary estate (everything that isn’t left specifically to another named beneficiary). If so, then the gift passes to the residuary beneficiary.
But many wills do not define the residuary estate this way. In that situation, if the alternate beneficiary is not available (or none was named), look to see whether or not your state’s anti-lapse law applies.
Every state (except Louisiana) has an “anti-lapse” law, which tries to guess what the will-maker would have wanted when a will gift to a relative fails. Unless the will named an alternate beneficiary, anti-lapse laws generally give property to the children of the deceased beneficiary. For example, if a woman left money to her daughter, and the daughter died first, the money would go to the daughter’s children.
Anti-lapse laws commonly apply only if the deceased beneficiary:
These laws almost never apply to a beneficiary who isn’t related by blood to the will-maker. That means spouses are not covered. So if the will leaves everything to the surviving spouse and doesn’t name an alternate beneficiary, children from the surviving spouse’s previous marriage would not inherit. Instead, the property would pass as if there were no will.
If the anti-lapse law doesn’t apply because the beneficiary was not a blood relative covered by the statute, the statute may state that the gift goes into the residuary estate. Otherwise, the gift will go to the will-maker’s heirs.
If the will doesn’t tell you who should receive some or all of the property of a deceased beneficiary, and your state’s anti-lapse statute doesn’t apply because the deceased beneficiary wasn’t a close blood relative of the will-maker, the property will pass under state "intestate succession" laws, just as if there were no will.
The situation can be more complicated when a residuary beneficiary dies before the will-maker does. If the residuary estate is left to a group—for example, "my surviving children"—then if one of the group has died, the others share the residuary. But if the residuary estate is left to one or more named beneficiaries, an anti-lapse statute may apply.
Every state has its own laws that govern these situations, and they can be complicated. If you are in doubt, and especially if family members may not agree on how property should be divided, you’ll want to consult a probate lawyer who has expertise in handling this kind of issue.