What Happens When a Beneficiary Dies During Probate
A number of things can happen when a beneficiary of an estate dies during probate, and the occurrence isn't as farfetched as it might seem. Several months or even years can pass between the date of death and settlement of a probate estate. What happens with a deceased beneficiary's inheritance depends on state law and the terms of the decedent's last will and testament.
Death Before the Estate Is Distributed
A deceased beneficiary's share of an estate will typically become part of his or her own estate if the beneficiary survives the decedent but then dies while the estate is still being probated. But this can depend on whether the beneficiary is to receive a specific inheritance and is cited by name to receive it in the will.
If Sally were to inherit $50,000 from her father, that $50,000 technically transfers to her at the time of his death, even if the estate is still in probate. The money would, therefore, pass to Sally's own beneficiaries or heirs-in-law, depending on whether she had a will, if Sally dies after her father died.
- Sally's share of her father's estate would pass to her beneficiaries under the terms of the will if she had a last will and testament.
- Sally's share would pass in accordance with the intestacy laws of the state where she lived at the time of her death if she didn't leave a will. Intestacy laws determine a list of kin eligible to inherit from a decedent when there is no will. The list typically begins with the surviving spouse, if any, and children. These relatives are referred to as "heirs-at-law."
Exceptions to the Usual Rules
An exception can occur when a beneficiary dies within a relatively short period of time after the original decedent's death. In this case, one of two things will happen:
- If the original decedent left a last will and testament, the terms of that will might dictate a period of time that must pass between his death and that of his beneficiary. This is called a "survivorship period" and it can be anywhere from a few days to a few months.
- If the original decedent's will doesn't dictate the period of time by which the beneficiary must survive the original decedent, or if the original decedent didn't have a will, the probate laws of the state where the original decedent lived will dictate the period of time that a beneficiary must survive beyond the original decedent's date of death.
Some wills contain the words, "...if he is living." This statement prevents the inheritance from going to the beneficiary's estate because the beneficiary must be alive to take possession of it.
When the Estate Goes to "Class" Beneficiaries
Some wills leave the estate or a specific inheritance to a group of people as a whole, such as all the deceased's children. Should one of them die before probate is completed and bequests are made, the apportionment simply changes among those who are still alive.
For example, each beneficiary would receive 25% if the decedent left his estate to his four children as class beneficiaries. The surviving beneficiaries would each receive 33.33% in the event that one of them died during probate.
When the Beneficiary Dies First
The beneficiary must survive at least beyond the original decedent's date of death. His or her share of the estate stays with the original decedent's estate otherwise.
Sally would usually be deemed to have predeceased the original decedent just as if she had died before them if the decedent's will states that his or her beneficiaries must survive by 30 days, and if Sally survives the decedent by only 15 days.
In either case, Sally's share would pass either in accordance with the terms of the decedent's will if he or she left one, or under the provisions of the state's intestacy laws if he or she didn't. Many wills provide specific language to cover this eventuality, naming alternate beneficiaries who should receive an inheritance if the original beneficiary is no longer alive to claim it.
Sweeney Probate Law. "What if a Beneficiary of a Will has Died?" Accessed July 15, 2020.
California Living Trusts. "Who Is Responsible for Inheritance When Someone Dies Without a Will?" Accessed July 15, 2020.
Law Office of Inna Fershteyn. "Survivorship Requirement – What if My Beneficiaries Pass Away?" Accessed July 15, 2020.