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Who Inherits If An Beneficiary Under A Will Dies Before A Testator In New York?

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Updating wills and other estate planning documents is something that should be done often, especially if there are major life changes or if a beneficiary under a will passes away before the testator. If the testator does not make the required changes, the gift may lapse and the property be passed on to others in a way that may not reflect the testator’s wishes.

A gift lapses or fails when it cannot be completed as provided in a will because the beneficiary dies before the testator. One way in which the law attempts to deal with lapsed gifts is through anti-lapse statutes. Under New York’s anti-lapse statute, if a person who would have received property under another’s will dies before the testator, the gift goes to the deceased person’s children. However, this only applies if the deceased person had children who do not die before the testator, and only if the testator was the parent or sibling of the deceased person who was meant to inherit under the will.

As an example, Jim writes a will leaving his entire estate to be split between his two children, Jane and Bill. Jane has two children of her own. Jane falls ill and dies before Jim, but Jim never makes any changes to his will to account for Jane’s death. If Jim dies, the part of his estate that would have gone to Jane would be ordinarily considered a lapsed gift. However, because Jane was Jim’s daughter, her portion of the estate is passed on to her children, who are alive when Jim dies.

If a testator is living gifts to people who are not covered under the anti-lapse statute, they do not have the protection of the statute. Therefore, if Jim left his estate to his children and his best friend Tom, and Tom died before Jim, Tom’s portion of the estate would not go to Tom’s children, if he has any. The portion of the estate that Tom would have received had he died after Jim goes back into Jim’s estate. The property can then be distributed according to other provisions in the will, or passed on to Jim’s next of kin. In this case, if Tom cannot inherit, his half of the estate would go to Jim’s children Jane and Bill.

Sometimes a testator can include a provision in a will transferring all residual property in his estate to a trust. This can be a good way to ensure that any lapsed gifts are still distributed according to the testator’s wishes.

Contact an Experienced Estate Planning Attorney

If you do not have an estate plan in place distributing your property upon your death, or if you need to update your existing plan, you need to work with an experienced estate planning attorney. Setting up a regular schedule to update your estate plan can ensure that your wishes are honored after your death. To have an experienced attorney work with you, contact a knowledgeable estate planning attorney at Meyer & Spencer, P.C., with offices in Pleasantville and Mahopac, New York, and serving Westchester and Putnam Counties.

Resource:

scholar.google.com/scholar_case?case=9356928128732090752&q=anti-lapse+statute&hl=en&as_sdt=4,33&as_ylo=2014

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