Much of estate planning, including the drafting of a will, involves preparing for different contingencies. One of the most important contingencies a person should make preparations for in a will is the possibility that the will writer may outlive one of his or her beneficiaries. One way to plan of this possibility is the naming of alternate beneficiaries.
Although it is relatively unusual, beneficiaries do sometimes predecease the people who have bequeathed them property from their estates. If the writer of a will has included an alternate, or contingent, beneficiary as well as a first beneficiary, in the event the first beneficiary dies before the will writer, the alternate beneficiary will inherit the asset or assets as indicated in the will.
But if the will writer has not named an alternate beneficiary, any number of scenarios may play out that the will writer may not have intended. In some cases the property would go to a residuary beneficiary — a person named to inherit some assets but not the assets bequeathed to the first beneficiary. In other cases property would go the individuals who are determined to be heirs under state law, as it would have if no will had been written at all.
Another possibility is that, the property could end up going to the first beneficiary’s descendants as governed by a state’s anti-lapse law. The anti-lapse law is a statute that authorizes the state to try to guess what an individual’s intentions would have been after a bequest to a relative has failed because he or she died. In most cases, anti-lapse laws give property to the children of the deceased beneficiary. However, in order for the anti-lapse law to apply, the first beneficiary must have been a close blood relative.
In order to avoid any undesired estate dispersal scenarios, it is prudent for an individual to consult an experienced estate-planning lawyer, who will be able to help that person draft a legally enforceable will that reflects his or her wishes.