What Happens if a Person Named in My Will Predeceases Me?

By AARON DUNHAM, Attorney at Law

Part of the estate planning process is considering many possibilities and options, including that a family member or friend to whom a person leaves a gift may die before (“predecease”) the person executing a will (the “testator”).

If the will is silent and a person receiving a gift in a will (a “beneficiary”) passes away before the testator, the gift in the will fails or “lapses.” Normally, a beneficiary predeceases the testator if the beneficiary does not survive the testator by 120 hours.  See RCW 11.05A et seq.  The effect of a lapsed gift depends on the type of gift provided to the beneficiary and the relationship of the beneficiary to the testator. If there is a lapsed gift, the personal representative of the estate may petition the court to determine the effect of the lapse.  RCW 11.12.120(3).

In most situations, a lapsed gift falls into the residue of the estate. RCW 11.12.120(1).  This means that the gift will be distributed to a surviving person that takes under the residuary clause of the will.  Id.  If there is no residuary clause, the residue is distributed according to the laws of intestacy, Washington’s statutory scheme dictating the distribution of property for individuals who die without a will. Id. For example, Allen’s will provides: (1) a $10,000 gift to Bob; and (2) Carmen is gifted the remainder of Allen’s assets (Carmen is the “residuary beneficiary”). If Bob predeceases Allen, Carmen will receive the $10,000 as part of the residue of Allen’s estate.

Usually, if a person predeceasing a testator is one of several residuary beneficiaries, the share of the predeceased person lapses. RCW 11.12.120(2).  Generally, the lapsed share is taken by the other residuary beneficiaries.

However, if the person predeceasing the testator is related to the testator, Washington’s anti-lapse statute might take effect.  See RCW 11.12.110.  For the anti-lapse statute to take effect, the person who predeceased the testator must be a descendant of one of the testator’s grandparents.  Id.  Basically, the person that predeceased the testator must be an aunt/uncle, cousin, sibling, niece/nephew, or child of the testator.  See Id. This statute provides that the descendants of the predeceased beneficiary essentially “step in to the shoes” of the predeceased beneficiary and take the property in his or her place. Id.

In order to prevent any confusion that a lapsed gift may create, a testator may simply execute a will that provides for a contingency, in the event a beneficiary predeceases a testator.  Planning for such an event may also prevent any undesired distributions of a person’s estate.  Perhaps, in the above example, Allen would rather have Bob’s children, instead of Carmen, receive the $10,000. A well thought out estate plan may provide for such a distribution. The attorneys at Wolff, Hislop & Crockett can assist you with all of your estate planning needs. Contact us today for a consultation.

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