What If the Beneficiary of a Will Has Died?

What you'll need to consider if the beneficiary of a will has already died.

By , J.D. · UC Berkeley School of Law

If you're dealing with a will that leaves property to someone who has already died, 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. Below are some areas you'll need to consider.

Understanding the Survivorship Requirement for Beneficiaries

If a beneficiary died before the person who made the will died, you'll need to figure out who inherits the gifts made to that deceased beneficiary. This is also the case if the beneficiary died shortly after the will maker died. Why? Many wills, and some state laws, impose what's called a "survivorship period"—a minimum number of days that the beneficiary must survive the will maker. The reason for this survivorship requirement is that it can help achieve the will maker's actual intent. (For more, see Survivorship Requirements in Your Estate Plan.)

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."

Even if the will doesn't impose a survivorship requirement, state law might. In some states, all wills are subject to a five-day (or 120-hour) 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 the property. In that case, you would turn the property over to the deceased beneficiary's estate, and it would go to the beneficiary's own inheritors.

Alternate Beneficiaries Inherit When the Primary Beneficiary Is Deceased

Assuming that the beneficiary died before the will maker, or within the survivorship period discussed above, the general rule is that the alternate beneficiary inherits in place of the first-in-line beneficiary (also called the "primary beneficiary"). For example, a will might say, "I leave my estate to my spouse, Cassidy Brown or, if she does not survive me, to my children Kaia Brown and Jalen Brown in equal shares." In this case, if the primary beneficiary, Cassidy Brown, were to die before the will maker, the children would inherit all of the property.

If There's No Alternate Beneficiary, Results Will Depend on the Will and State Law

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 one of the following:

  • the residuary beneficiary named in the will
  • the primary beneficiary's descendants, under your state's "anti-lapse" law, or
  • the primary beneficiary's heirs under state law, as if there were no will.

When the Residuary Beneficiary Inherits in Place of the Deceased Beneficiary

Some wills clearly state that lapsed gifts become part of the residuary estate (everything left over after all the specific gifts have been made). 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.

When the Deceased Beneficiary's Descendants Inherit in Place of the Deceased Beneficiary

Every state (except Louisiana) has an "anti-lapse" law, which tries to guess what the will maker would have wanted when a 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:

  • was either the will maker's grandparent or a direct descendant of a grandparent (parent, sibling, niece or nephew, uncle or aunt, first cousin, and so forth), and
  • left behind children.

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 spouse and doesn't name an alternate beneficiary, children from the spouse's previous marriage would not inherit under anti-lapse laws. 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 under intestate succession laws (see the following section).

When the Will Maker's Heirs Inherit in Place of the Deceased Beneficiary

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. Each state sets out an order of succession for who inherits property when there is no will.

To see the order of priority in your state, find out how intestate succession laws work in your state.

When Only One or Some of the Beneficiaries in a Group Has Died

Things can get more complicated when a will makes a gift to a group of people. If one person in the group has died, the deceased beneficiary's share of the gift might go to the remaining people in the group, or it might go to the deceased beneficiary's heirs. The result rides upon whether the will maker named the beneficiaries individually, or whether the will maker simply named a class of people—for example, "my surviving children."

Find out more about group gifts (or "class gifts") and the special rules that apply when one group member dies.

Expert Help to Figure Out Who Inherits

Every state has its own laws that govern these situations, and they can be complicated. If you're in doubt, and especially if family members might not agree on how property should be divided, you'll want to consult an experienced probate lawyer.

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