If your father names his three children to inherit his property in his will and one of his children dies before him, what happens to his property usually depends on how he drafted the will and whether the deceased sibling had children of her own. An estate planning attorney can answer questions about setting up a will so that your treasured belongings end up where you want them to go.
A Lapsed Inheritance Goes to the Remaining Beneficiaries
Ordinarily, when a beneficiary named in a will dies before the person who created the will, the deceased's inheritance lapses, or fails. It is usually distributed among the other beneficiaries named in the will, if there are any. Which beneficiaries get the lapsed inheritance depends on the wording of the will. For instance, if your dad's will reads, “I leave my entire estate to my children,” you and your siblings would split a deceased sibling's share. Or, if your dad intended to leave specific things to certain children and his will specifically names what he is leaving each child, it might read, "I leave my house to Sally, my stock to Bob, and the remainder of my estate to Beth." In this case, if Sally dies before your dad, his gift of the house to her would fail, so it would become part of the "remainder of the estate," and go to Beth.
Antilapse Statutes Save the Inheritance for Descendants
To save a deceased beneficiary's inheritance from lapsing, most states have enacted “antilapse” statutes. If the deceased beneficiary leaves his own descendants, these laws prevent the deceased person's inheritance from failing and going to other beneficiaries named in the will. The deceased beneficiary generally must be a direct descendant of the will creator, such as child or grandchild. For example, if your sister Sally left surviving children of her own, her lapsed gift of your dad's house goes to them; they are her replacement under the will. This is considered to be more in keeping with how the will creator would have wanted his estate distributed rather than allowing the inheritance to lapse. Spouses of a deceased beneficiary are usually not allowed to inherit under antilapse statutes.
State Laws Apply in Some Cases
Maybe your dad named only you to inherit in his will, and you die before him. In this case, if the antilapse statute does not apply because you didn't leave your own descendants, your inheritance falls into what's called an "intestate" estate. In other words, it is as if your father died without a will. Therefore, his estate would be distributed according to his state's intestacy laws. This usually means the next closest relatives would inherit, usually a spouse and/or any remaining children, or otherwise his surviving parents, then siblings, then more distant relatives, then finally, the state, if no living blood relatives are found.
Good Estate Planning Works around Problems
As with other issues that arise in the probate of wills, good estate planning can anticipate and prepare for such events. For instance, if your dad wants to ensure that a child's inheritance goes to another beneficiary in the event of the child's death, he can simply state in his will that the child must survive him to inherit, and then name alternate beneficiaries. Such will provisions override antilapse laws.
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