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 that 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 important 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.

Survivorship Clauses and the Anti-Lapse Statute

One important nuance that catches many people off guard is the interaction between survivorship clauses and anti-lapse statutes. A survivorship clause is language in a will that conditions a gift on the beneficiary surviving the testator—for example, “I leave my house to my brother, if he survives me.”

When a will contains survivorship language, most courts hold that the testator’s explicit condition overrides the anti-lapse statute. In other words, if the will says “to my brother, if he survives me” and the brother predeceases the testator, the gift fails—even if the brother has living children who would otherwise take under the anti-lapse statute. The testator’s expressed intent controls.

It is worth noting, however, that this is not the universal rule. In states that have adopted UPC § 2-603(b)(3), words of survivorship alone do not defeat the anti-lapse statute absent additional evidence of contrary intent. The Restatement (Third) of Property agrees with this position. If you live in one of these states, a simple survivorship clause may not be enough to override an anti-lapse statute, making careful, jurisdiction-specific drafting even more important.

This can produce harsh results if the testator did not fully think through the implications. A survivorship clause that was intended merely to prevent a simultaneous-death dispute can inadvertently disinherit an entire branch of the family. For this reason, careful drafting is essential: if you want the anti-lapse statute to apply as a safety net, avoid conditioning specific bequests on survival without also providing an alternative disposition.

A Practical Example

To illustrate how these rules work together, consider this scenario: a testator has three children—Alice, Bob, and Carol—and leaves her entire estate to them equally in her will. Bob dies before the testator, but Bob has two children of his own.

Under traditional common law, the so-called “no residue of a residue” rule meant that Bob’s lapsed share would pass by intestate succession to the testator’s heirs at law rather than to Alice and Carol. Most states have since abolished that rule, so absent an anti-lapse statute Alice and Carol would today simply divide the estate between them. Either way, Bob’s children would receive nothing under the will itself.

Under a typical anti-lapse statute, however, Bob’s share would pass to Bob’s two children. Alice and Carol would each still receive one-third, and Bob’s children would divide Bob’s one-third between them—each receiving one-sixth of the total estate.

But if the will had included a survivorship clause—“to my children, if they survive me”—the anti-lapse statute would likely not apply. Bob’s share would lapse, Alice and Carol would each take one half, and Bob’s children would be left out entirely.

The outcome changes dramatically depending on how the will is drafted. This is why estate planning requires careful attention not only to whom you want to inherit, but also to what should happen if your intended beneficiaries are no longer living.

Trusts as an Alternative

While wills are subject to the rules of lapse and anti-lapse discussed above, a living trust offers an alternative that can provide greater flexibility. Because a revocable living trust can be amended at any time during the grantor’s life, the grantor can update beneficiary designations as circumstances change—including when a beneficiary dies.

A trust also avoids probate entirely, and in many states the distribution of trust assets is governed by the trust document rather than by the lapse statutes that apply to wills. This can give the grantor more direct control over contingency planning, since the trust can spell out exactly what happens to each share if a beneficiary predeceases the grantor.

It is important to note, however, that a growing number of states now extend anti-lapse principles to trusts as well. California’s Probate Code § 21110, for example, explicitly applies the state’s anti-lapse statute to both wills and trusts. States that have adopted UPC § 2-707 take a similar approach for future interests held in trust. If you are relying on a trust to avoid default lapse rules, check your state’s law to confirm whether anti-lapse applies to trust distributions.

That said, trusts are not a universal solution. They require more upfront effort and expense to establish, and assets must be properly transferred into the trust to be effective. For many people, a well-drafted will with carefully considered contingent beneficiaries and distribution designations provides adequate protection. The best approach depends on the size and complexity of the estate, the family dynamics involved, and the level of control the testator wishes to maintain. And if changed circumstances warrant a complete restart, you can always revoke a will and create an entirely new estate plan.

Frequently Asked Questions

What happens when an heir dies before the person who wrote the will?

When a named beneficiary predeceases the testator, the bequest typically “lapses” and passes to the contingent beneficiary (if one was named), then to the residuary estate, and finally through intestate succession if no other provision exists. Anti-lapse statutes in many states can override this default by passing the share to the deceased beneficiary’s descendants.

What is the anti-lapse statute?

An anti-lapse statute is a law that prevents a bequest from failing when the beneficiary dies before the testator. In Arkansas, if the deceased beneficiary is a descendant of the testator, the anti-lapse statute passes that beneficiary’s share to their own descendants instead of allowing it to lapse into the residuary estate.

What is the difference between per stirpes and per capita distribution?

Per stirpes distributes property by family branch—each branch receives an equal share regardless of how many descendants are in that branch. Per capita at each generation distributes equally among all living descendants at a given generation level. These designations help determine how property passes when beneficiaries predecease the testator.

Does a survivorship clause override the anti-lapse statute?

In most jurisdictions, yes. If a will conditions a gift on the beneficiary surviving the testator—for example, “to my sister, if she survives me”—courts generally hold that this explicit language overrides the anti-lapse statute. The gift will lapse if the beneficiary does not survive, even if the beneficiary has living descendants who would otherwise inherit under anti-lapse. However, states that have adopted UPC § 2-603(b)(3) take the opposite position—survivorship language alone is not enough to defeat anti-lapse without additional evidence of contrary intent.

Can a living trust prevent lapse problems?

A living trust avoids probate, and in many states trust distributions are governed by the trust document rather than by the lapse statutes that apply to wills. However, a growing number of jurisdictions—including California and states adopting UPC § 2-707—now extend anti-lapse principles to trusts as well. The grantor can specify exactly what happens to each share if a beneficiary predeceases the grantor, and can amend the trust at any time during life to update beneficiary designations as circumstances change. Check your state’s law to confirm whether anti-lapse applies to trust distributions.

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