Beneficiary Dies During Lifetime Flashcards
What is the general rule for when a beneficiary dies during the testator’s lifetime?
If the beneficiary dies during the testator’s lifetime, the gift specified in the will lapses. The testator cannot make a gift to a dead person, who cannot own property.
What is the exception to the general rule for when a beneficiary dies during the testator’s lifetime?
The exception to the general rule is when a gift is saved by the state’s anti-lapse statute.
When does the TX anti-lapse statute apply?
The Texas anti-lapse statute applies ONLY when the now-dead beneficiary was:
a) descendant of testator’s parent
(child, grandchild, brother, sister, nephew, niece)
AND
b) survives testator by 120 hours
T’s valid will stated:
“Blackacre to my son S and $25,000 to uncle U. The rest of my estate to my wife W.”
S dies before T but S1, a son of S, survives. S’s will stated that all his property would go to his wife H. U died, leaving behind a daughter, B.
Who gets what?
Blackacre: T’s original will said that this property would go to S, but S died. The anti-lapse statute applies if the son S1 is a descendant of T’s parent AND if S1 survives by 120 hours. S1 is the grandchild of T and is alive, so he gets Blackacre under the anti-lapse statute.
- What about S’s will stating his property would go to H? Irrelevant. H isn’t a descendant of T.
$25,000: this does not go to U or B. Neither fall under the anti-lapse statute because they are not descendants of T’s father and U does not survive by 120 hours.
T’s will stated: “Blackacre to my son S, IF HE SURVIVES ME…” But S died before T. S has a surviving son S1.
Where does Blackacre go?
The anti-lapse statute does not apply. S1 could not get Blackacre from the anti-lapse statute because the gift fails according to the terms of the agreement.
T’s valid will stated:
“Blackacre to my son S and $25,000 to uncle U. The rest of my estate to my wife W.”
But S dies before T and does not have any children. What happens to Blackacre?
Blackacre remains as a residuary estate. T’s wife W has a right to the residuary estate, and thus Blackacre.
What happens when the residuary estate is devised to two or more people and the gift to one of them lapses?
The remaining residuary beneficiaries take the residuary estate in proportion to their interests.
T’s will states: “all the rest of my estate in equal shares to my friend A, brother B, and sister S.” A dies before T, but leaves behind a child A who survives T by 120 hours.
How is this residuary share bequeathed?
A1 is not entitled to any residuary estate because the anti-lapse statute does not apply. He is the child of T’s friend and is not a descendant of T’s parent.
B and S are siblings of T. They are entitled to half of the surviving residuary.
T’s will states: “all the rest of my estate in equal shares to my friend A, brother B, and sister S.” S dies before T, but leaves behind a child D who survives T by 120 hours.
How is the residuary estate bequeathed?
Friend A: 1/3 of residuary estate
Brother B: 1/3 of residuary estate
Niece D: anti-lapse statute applies because she is granddaughter of T’s father (descendant) and survives T by 120 hours. She recieves 1/3 of the residuary estate.
What is the rule regarding class gifts?
When you read the will, the general rule is that the takers of the class gift exist as of the testator’s death.
The rule of convenience closes the class, meaning that later-born class members do not share the gift when some class member is entitled to distribution. Essentially, the class closes at testator’s death subject to the gestation principle (300 days from conception to birth).
T’s gift was “to the children of my brother J,” but J dies before T. What happens to T’s gift?
The gift is given to J’s children who survive T by 120 hours. The anti-lapse statute applies because T’s brother’s children are his nephews/nieces and thus are descendants of T’s parent.
T’s will states that Blackacre will go to my “brother and sisters.” But one sister dies before T. Will this sister’s children be able to use the anti-lapse statute?
No. If a class member was dead when the will was executed, the anti-lapse statute does not apply in favor of the class member’s descendants. The sister’s children cannot inherit part of Blackacre.
