If a will’s beneficiary dies, their share usually goes to a contingent beneficiary named in the will, or follows state law.
General rule
The share goes to a contingent (backup) beneficiary named in the will.
If none
Many states have anti-lapse laws that pass the gift to the beneficiary’s descendants (if they are close family).
Otherwise
The gift may fall into the residuary estate or pass by intestacy.
Varies
State laws differ.
Fix
Update your will after deaths.
Advice
Talk to an estate attorney.
Default rules
If a named beneficiary dies before the person who made the will (the testator), the gift to that beneficiary may fail (“lapse”). Many states have anti-lapse statutes, which pass the gift to the beneficiary’s descendants (children or grandchildren) if the beneficiary was a close relative such as a child or sibling of the testator, unless the will says otherwise.
- If the will names alternate or contingent beneficiaries, the gift goes to them.
- If there is no anti-lapse protection, the gift goes into the residuary estate, and if the residuary clause also fails, it passes by intestacy under state law.
- Rules differ for spouses, joint ownership and trusts.
What to do
Review the will after major family changes such as deaths, births, marriages or divorces. Name contingent beneficiaries and include a clause for what happens if a beneficiary dies first. An estate planning attorney can update the will with a codicil or new will. This is general information, not legal advice, and state law governs.
Default rules
If a will beneficiary dies before the testator, the gift may lapse. Many states have anti lapse statutes that pass the gift to the deceased beneficiary’s descendants if they were relatives. Otherwise it goes to the residuary estate or by intestacy.
What to do
Update the will with a lawyer to name contingent beneficiaries. Rules differ by state.
Role of contingent beneficiaries
If a person named in a will dies before the will maker, the gift to that person typically lapses. What happens next depends on the will’s wording and state law. Many wills name alternate or contingent beneficiaries to take the gift. If none are named, the gift may fall into the residuary estate.
Anti lapse statutes
Most US states have anti lapse statutes. If the dead beneficiary was a close relative such as a child or sibling, their descendants may inherit the share in their place. The rules differ, and some wills specify survivorship periods, often 30 to 120 hours. When a will is outdated, the maker should update it after a beneficiary dies. If a will fails, state intestacy laws decide the heirs. Life insurance and retirement accounts follow the beneficiary designation forms instead of the will. This is general information, so consult an estate attorney.
Based on data from the American Bar Association and the Uniform Probate Code
