When an Heir Predeceases the Testator

Perhaps you have thought about your estate plan and the provisions you would like included in your will. Perhaps you have even considered every aspect of your estate and decided to whom you would like to leave all your property.

If considering your own mortality is not uncomfortable enough, however, you should also take into consideration the possibility than an heir will predecease you. Most people do not like to think about their own death, much less the death of a spouse, child, or other loved one.

Planning for contingencies, however, is crucial for proper estate planning. In this post, I will discuss the way the law handles the situation that arises when a will beneficiary predeceases the testator.

As a note, the words “heir” and “will beneficiary” are often used interchangeably. While “will beneficiary” is probably more precise for purposes of this post, I will use both to refer to those the testator selects to inherit.

Handling the Inheritance When an Heir Predeceases the Testator

As a general matter, if an heir predeceases the testator, his or her scheduled inheritance will pass to whomever the will names as the contingent beneficiary. For this reason, it is important always to name a contingent beneficiary in your will. A single extra sentence in your will can provide you an extraordinary amount of additional control and provide your heirs and executor with much greater certainty.

If, however, your will does not name a contingent beneficiary, or if the contingent beneficiary has also passed away—assuming the will did not name a contingent contingent beneficiary—the inheritance will pass to the beneficiary of the residuary estate.

The residuary estate is any property in the estate that the will does not specifically address. Many testators who want one individual or select group of individuals to inherit everything put their entire estate in the residuary estate and name beneficiaries only for the residuary estate.

Finally, if there is no residuary estate beneficiary, or if the original inheritance in question was that of the residuary estate, the property will pass according to intestate succession. As most people draft a will to prevent their property from passing according to the intestacy statute, proper planning for contingencies is an import part of estate planning.

Saving a Testator’s Gifts

One way to save a testator’s gift where the will beneficiary has died and there is no contingent beneficiary is through the anti-lapse statute, which provides that if there is a lapse, the issue—or descendants—of the will beneficiary will take. (In Arkansas, this only applies where the will beneficiary is a descendant of the testator.) Where the anti-lapse statute applies, the bequest will pass to the residuary estate only if the heir has no descendants.

Will Beneficiaries of Class Gifts

Often bequests are left not to individuals but to classes of individuals. Provisions that provide for gifts to “my children” are common examples of class gifts. What happens in such a situation, however, if a testator has multiple children but one has passed away?

Under common law, the share of the other class members would simply increase. So, if a testator had three children but one predeceased the testator, the two surviving children would each inherit one half of the class gift.

The anti-lapse statute discussed above, however, can save these bequests. So, if a testator leaves a class gift to his children, two of whom survive while the other predeceases the testator, the surviving children will each inherit one-third and the children of the predeceased child will divide their parent’s share.

Another way of saving class gifts, particularly with regard to the residuary estate, is simply to utilize the per stirpes or per capita at each generation designations.