The concept of having an estate plan, is to prevent intestacy. However, things don’t always work out as planned, according to the Lake Country News’ in “Estate Planning: Failed Testamentary transfers.” That’s why every will, trust and any asset of any kind with a beneficiary designation, should have an alternative or secondary beneficiary.
Here’s what happens, if the person isn’t named. If the deceased beneficiary was the decedent’s kin or was kin to the surviving spouse, deceased spouse or even an ex-spouse, in California a special statute called the California Anti-Lapse Statute comes into play, unless another intention is expressed in the will. Under this law, a gift to a deceased kindred beneficiary goes to the kindred beneficiary’s descendants.
The share of the asset will be divided into as many shares, as there are living members of the next generation of kin.
Here’s an example: Let’s say a father makes a gift to his beloved daughter Susan. Sadly, Susan dies before her father. She has two daughters, Dawn and Heather. There’s also a son, Phil, who has passed away, with two surviving children (who were Susan’s grandchildren).
The shares of the father’s gift to Susan is divided by a right of representation into three equal shares: one share each for both of Susan’s daughters Dawn and Heather, and one share for her son Phil, because he has two surviving children.
The share for Phil’s two kids is split equally between the two boys.
This division of assets is a statutory response to what can happen when children do not live longer than their parents.
When there is no alternative beneficiary to inherit and the Anti-Lapse statute does not apply, then the gift is subject to a residual clause. This determines how the remainder, or balance, of the assets are distributed after any specific gifts or assets and monetary gifts are made. First in line: any debts or taxes that need to be paid by the estate.
When there are no specific or monetary gifts, the residuary clause distributes the decedent’s entire estate.
Let’s say Bob leaves his entire estate to his friend George. The Anti-Lapse statute does not apply, because Bob’s heir is not a relative. The will has a residuary clause that gives the remainder of the estate to Bob’s own children equally, even though that might not have been Bob’s intention.
While every state has different laws, this is a good example of why it is very important to update your will on a regular basis. It’s also important to have alternative or secondary heirs named as beneficiaries.
An estate planning attorney can advise you in creating an estate plan that fits your unique circumstances.
Reference: Lake Country News (Jan. 26, 2019) “Estate Planning: Failed Testamentary transfers”