What Happens in Probate if a Beneficiary Has Died?

18 March 2019

In general, where a beneficiary dies before the deceased their gift will fail and they will not receive anything from the deceased's Estate. However, if the beneficiary survives the deceased but then dies before receiving their inheritance, usually their inheritance will form part of their Estate to be passed on according to their Will or the Rules of Intestacy.

The administration of an Estate normally takes several months to be dealt with in full, especially if there is a property to be sold. As such a situation can occur where a beneficiary who was living at the time of the deceased's death subsequently dies before receiving their inheritance. This can cause confusion as to what happens to their share of the Estate.

Survivorship Conditions

If a beneficiary only survives the deceased by a few days, they may be treated as having died before the deceased. Many wills contain a survivorship clause which state a beneficiary must survive the deceased by a certain length of time to inherit, normally 28 days, otherwise they are treated as having died before the deceased. If there is no Will, then under the rules of intestacy a spouse or civil partner must also survive by 28 days to inherit from the deceased's Estate.

Generally where a beneficiary has survived the deceased by at least 28 days but subsequently dies before receiving their inheritance, their share of the deceased's estate will pass to their own estate. This means the legacy they were due to receive will then pass under the terms of their will (if there is one) or the rules of intestacy (if there isn't).

Beneficiary Dies after the Deceased

As long as the beneficiary fulfils any survivorship clause in the Will or under intestacy, their gift or share of the deceased's Estate will pass to their Estate to be distributed according to their Will or the Rules of Intestacy.

For example, if a deceased leaves a 50% share of his estate to his son and his son survives him by a few months but then dies, the 50% share of the deceased's estate will now form part of the son's estate.

If a grant of probate is needed for the son's estate, then the total value of his estate will need to be known in order to apply for the grant of probate. This means that the person carrying out Probate on the son's estate will need to know the value (or estimated value) of the inheritance that is due. This will then need to be declared on the inheritance tax forms for the son's estate.

If the exact amount cannot be calculated, for example if the deceased's property has not yet been sold, then an estimated figure can be used and corrected later.

Beneficiary Dies before Deceased

Generally if a beneficiary dies before the deceased, the beneficiary's gift will lapse (fail) and they will not inherit anything from the deceased's estate. Whatever they were due to receive will fall back into the deceased's residuary estate to be redistributed. However the deceased may make provision in their will for the gift to be redirected in those circumstances stating that if the original beneficiary dies before them then alternative beneficiaries will receive the gift instead.

This can also happen under general law in the following circumstances:

  • Where a will contains a gift to a child, adopted child or grandchild of the deceased, and
  • The child dies before the deceased, leaving children of their own; and
  • These children of the intended beneficiary are living at the time of the deceased's death

Then, unless the will expresses a contrary intention, the gift will take effect as a gift to the children of the initial beneficiary.

In effect, this means that if a parent leaves their child a gift in a Will and that child dies before the parent, leaving children of their own, then those children (the parent's grandchildren) will receive their parent's share.

Dealing with Multiple Estates at Once

In certain circumstances two estates will need to be dealt with together. For example, if a husband dies leaving his entire estate to his wife, and his wife survives over 28 days but dies before inheriting his estate, then probate may be required for both the husband and the wife's estates.

At Co-op Legal Services, our probate specialists can deal with both estates simultaneously to reduce the length of time it takes to complete the administration. Even though two grants of representation will need to be applied for and two sets of inheritance tax forms completed, dealing with both estates simultaneously can mean that the estate administration won't take twice as long.

If you need help with probate, contact us:

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