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question.jpgIn Trusts and Estates

What happens if one of my intended heirs dies before me?

Sometimes someone will be included in a will as a beneficiary but will end up dying before the person who drafted the will. In this situation, the gift that was intended to go that beneficiary is said to “lapse,” because the intended heir cannot receive it (because dead people, obviously, cannot take possession of property). When there is such a lapse, one of several things can happen. In some cases, the will may state what happens, in which case, the property is distributed pursuant to the will (for example, a will may say, “if Roger does not outlive me, then the property that was to go to him should instead be given to Bill”). If the will does not address this situation, one looks to state law - many state have laws known as anti-lapse statutes which tell you where the property goes. If there are no such anti-lapse statutes in the relevant state’s probate code, the property becomes part of the residuary property of the estate (that is, the property not specifically addressed by the will). Some wills contain residuary clauses, dictating what happens to the left-over property (for example, “any of my property not specifically mentioned in this will goes to Bob”), and this would apply to the lapsed gift as well. Finally, if there is no such residual clause, the property will be distributed pursuant to the state’s intestacy statutes.