6. Changes in Beneficiaries After Execution of a Will

Question 1

Section A: Lapse and Anti-Lapse

What is Lapse?

Answer 1

A gift under a will lapses (fails) if the named beneficiary dies before the testator.

Question 2

What is Georgia’s Anti-Lapse Statute?

Answer 2

Georgia’s Anti-Lapse statute allows a lapsed gift to pass to the descendants of the deceased beneficiary, who inherit by representation, irrespective of their relationship to the testator.

Question 3

What happens if the beneficiary is not survived by any descendants?

Answer 3

The gift will lapse.

Question 4

When does the Georgia’s Anti-Lapse Statute not apply?

Answer 4

The Anti-Lapse statute does not apply if the testator:
1. specifies survival as a requirement;
2. states that lapse will result from failure; or
3. names a contingent beneficiary.

Question 5

What happens if a gift lapses with no descendants?

Answer 5

It falls into the residuary and goes to the residual legatee(s), unless the will specifies otherwise.

Question 6

What happens if a gift lapses and there is no residuary clause?

Answer 6

It will pass through the rules of intestacy that apply to the decedent, NOT the original beneficiary.

Question 7

Does the anti-lapse statute apply to a predivorce will?

Answer 7

The anti-lapse statute does not apply to a predivorce will when the testator’s former spouse is treated as predeceasing the testator, unless the former spouse’s descendants are also descendants of the testator (his/her kids as well).

Question 8

How does the anti-lapse statute apply to class gifts?

Answer 8

Georgia’s anti-lapse statute applies even where a class gift is involved, unless a contrary intent is expressed in the will.

Question 9

What happens if a class member who predeceases the testator leaves an issue?

Answer 9

The class member’s descendants take his share unless there is conditional language.

Question 10

How does the anti-lapse statute apply to residuary gifts?

Answer 10

If a residuary gift lapses but there are other residuary beneficiaries who survive the testator, they take the predeceased beneficiary’s share proportionally.

Question 11

What happens if there are no surviving residuary beneficiaries?

Answer 11

The lapsed or void residue passes by intestacy to the testator’s heirs.

Question 12

Simultaneous Death;

What happens if the owner of property and the beneficiary die and there is insufficient evidence as to the priority of death?

Answer 12

The property is disposed of as if the owner had survived.

Question 13

What happens if all beneficiaries die simultaneously and priority of death affects a testamentary disposition?

Answer 13

The property is divided equally among their estates.

Question 14

When it is unclear which of two joint owners of intangible assets died first, how are the assets divided?

Answer 14

The assets are split evenly, as if each survived the other.

Question 15

The decedent is the insured and the beneficiary in a life or accident insurance policy die

Answer 15

If it’s unclear whether the insured or beneficiary in a life or accident insurance policy died first, the proceeds are distributed as if the insured outlived the beneficiary.

Question 16

Section B: Class Gifts

When does a class gift exist?

Effect of Beneficiary Changes:

Answer 16

A class gift is a gift to a group of people identified by a general description (e.g., “my grandchildren”).

If one member of the class predeceases the testator, the remaining members of the class share the gift unless the anti-lapse statute applies.

New class members (e.g., grandchildren born after the will’s execution) are typically included in the gift.

Question 17

Do class gifts include future births or adoptions?

Answer 17

Yes. In Georgia, a will’s provision for the testator’s children includes future births or adoptions, unless the will states otherwise, even if children are named when the will is executed.

Question 18

Section C: Slayer Statutes;

What is Georgia’s Slayer Statute?

Answer 18

A person who kills the testator cannot inherit under the will.

Question 19

What killings apply to Georgia’s Slayer Statute?

Answer 19

Any type of killing that would constitute murder, felony murder, or voluntary manslaughter under Georgia criminal law.

Question 20

Do accidental killings apply to Georgia’s Slayer Statute?

Answer 20

No, the slayer rule does not apply if the killing was accidental.

Question 21

What happens to property distribution when a person is disqualified for wrongfully killing the decedent?

Answer 21

The property passes as if the slayer had predeceased the decendent.

Question 22

Are the slayer’s descendants precluded from taking from the decedent’s estate solely because their ancestor killed the decedent?

Answer 22

No. but when the killer’s descendants take under the laws of intestacy, they are entitled to no more than the share the slayer forfeited as a result of the killing.

Question 23

What happens to joint tenancy property under the slayer statute?

Answer 23

the property is converted from joint tenancy to tenancy in common, and the interest of the slayer prior to the slaying will be kept, but the other half (which the slayer would otherwise have gotten) passes as tenancy in common property to the decedent’s probate estate or via intestacy.

Question 24

If the slayer is the beneficiary or assignee of a policy insuring the life of the decedent, or is the survivor of a joint life policy, the proceeds will be paid to:

Answer 24

the decedent’s estate, or, if designated, to a contingent beneficiary, even if the contingent beneficiary is a relative of the slayer.

Question 25

Does the anti-lapse statute protect a gift for a killer’s descendants?

Answer 25

No, unless they are also descendants of the victim.

Question 26

Section D: Disclaimers/Renunciation

Can a beneficiary refuse the gift from a testator?

Effect:

Answer 26

Yes, the beneficiary can refuse the gift in part or in full, even to avoid creditors.

The disclaimed gift passes as though the beneficiary predeceased the testator.

This could trigger the anti-lapse statute or cause the gift to pass into the residuary estate.

Question 27

What are the four requirements for a disclaimer to be effective?

Answer 27

A disclaimer must be:
1. unqualified and irrevocable
2. filed before the beneficiary has accepted the gift
3. in writing
4. done within nine months of the testator’s death.

Question 28

What happens once the beneficiary has received any benefits of the gift to be renounced?

Answer 28

The gift is deemed accepted and cannot be disclaimed.

Question 29

What is the timeline for a minor to deliver a renunciation?

Answer 29

They have until they are 21 years old, then nine months after that.

Question 30

Effect of Disclaimer;

What happens if a person renounces their inheritance under Georgia’s Uniform Probate Code?

Answer 30

They are treated as if they predeceased the decedent.

Question 31

If the renouncer is the decedent’s only surviving sibling, aunt, or uncle, how are they treated under Georgia’s intestacy law?

Answer 31

They are not considered to have predeceased.