People rightfully spend a lot of time thinking about who they want their property and other assets to pass to after their death. But they rarely consider what they want to happen if someone named in their will as an heir passes away before they do. As an experienced estate planning attorney who has served Florida clients for over 25 years, I’ve encountered many clients unaware of this critical aspect of estate planning.
In a previous blog, I discussed some common mistakes made in wills, such as failing to regularly update a will, wrongly assuming a will allows you to bypass probate, or failing to comply with state requirements that ensure your will is valid. These are all vital considerations when drafting a will; however, there’s an often-overlooked question: What happens if your heir dies before you?
One helpful provision in this regard is known as Florida’s Anti-Lapse Statute. This law ensures that assets left to certain blood beneficiaries pass to those people’s descendants should they die before you, so their children benefit from the inheritance. This is especially important when parents leave their estate to their grown children; if one of the children passes away prematurely, the parents’ blood grandchildren are not disinherited.
The question of what happens if an heir dies before you points to the complex issues people need to consider when drafting a will. Continue reading to learn more, then contact us at (954) 979-6566 to schedule a free consultation to draft your own will and other end-of-life planning documents.
The Crucial Role of a Will in Properly Distributing Your Assets
A will is the most important document when it comes to estate planning. Regardless of how much money, property, and other assets you have, you likely have specific people you want these assets to go to after you are gone. A will directs the distribution of your assets according to your desires.
Sadly, 50% of Americans pass away without a will. When this happens, the courts determine how to divide your assets based on Florida state laws—which may or may not reflect your preferences. As a seasoned probate attorney with extensive knowledge of Florida state law and probate administration, I know that it is always best to direct your assets to your chosen heirs by drafting a comprehensive will that specifies the inheritance of each heir and complies with all relevant laws as part of your estate planning.
A will is especially important if you have minor children. Along with instructions for the distribution of your assets, a will allows you to appoint the person, known as a guardian, who will care for them if something happens to both their parents. Without a will, the court again makes the decision, potentially placing your children in the hands of someone you would not desire.
Selecting a Personal Representative: Why It Matters
One of the most important considerations when drafting a will is who will oversee the probate process for your estate after you are gone.
In Florida, when someone passes away their estate goes through a process known as probate, which is handled by a specialized probate court. Working with an experienced probate attorney, the person interacting with the probate court is called the personal representative, also known as the PR (or in some other states, the executor). This person is selected by the person drafting their will and is specifically named in the document.
The PR is the person legally responsible for handling estate matters as it goes through the court process. At the outset of the process, the Florida Probate Court grants Letters of Administration to the PR, a document that grants them the authority to administer the estate.
At that point the PR gets to work, taking various steps in Florida’s probate process with their attorney, including identifying the deceased’s assets, notifying creditors, paying taxes, and paying off estate debt. While fulfilling these duties, the PR must also navigate the implications of specific laws, such as Florida’s Anti-Lapse Statute, which applies to gifts made to certain intended beneficiaries in a will who have predeceased the testator (the person creating the will).
By law, a PR must be at least 18 years old and meet specific eligibility criteria. If they are not a blood relative, spouse, or the parent or child of your spouse, they must be a Florida resident.
It is possible that the PR passes away before the person who drafted the will naming them does. Because the role of the PR is so important, a well-crafted will should always name a backup person who could serve in the event the PR has died (or is otherwise unable to serve). If you name only one PR in your will without this backup, you run the risk that the court will appoint someone to this important role should that person die before you do.
Understanding the Anti-Lapse Statute: Ensuring Your Gifts Reach the Right Hands
Probate courts use the term “lapsed” when an intended recipient for an inheritance has passed away before the person who left them the assets did. You might think the assets would simply be absorbed back into the estate and redistributed to the remaining heirs, and sometimes it is. But that could be unfair to children of the family member who prematurely died.
Florida’s solution is an Anti-Lapse Statute covering certain immediate family members, which ensures that the gift goes to the predeceased beneficiary’s descendants. This way the testator’s original intention is honored.
Florida’s Anti-Lapse Statute applies to assets earmarked for specific relatives in a will. If the beneficiary dies before the testator, their share of the estate will pass to their surviving descendants, if any. This is true even if the will does not specifically state that the beneficiary’s descendants should inherit.
For example, if a testator has a will that leaves their house to their son, and the son dies before the testator, the house will pass to the son’s surviving children. This is because the Anti-Lapse Statute treats the son’s descendants as if they were the son himself.
The Anti-Lapse Statute does not apply to non-relatives or distant relatives; if that beneficiary dies before the testator, their share of the estate will pass to the testator’s residuary beneficiary, or if there is no residuary beneficiary, to the testator’s heirs according to the laws of intestate succession.
Tailoring Your Will to Accommodate the Anti-Lapse Statute
In many cases, especially when the person who predeceased them is their grown child, people are happy that the money earmarked for the deceased beneficiary goes to their heirs.
However, if you don’t want that to happen, you can specify wording in your will to say you are leaving that bequest or percentage of your estate to the person if they are still alive at the time of your passing. Should they not be alive, their share returns to the general estate to be reapportioned to remaining beneficiaries.
What Is a Substitute Beneficiary?
In Florida probate law, the term “residuary” refers to any asset not specifically mentioned in an estate plan. For example, if the will earmarks specific beneficiaries for items such as a house, jewelry, art, heirlooms, and pets, the remainder of the estate (including money) is the residuary portion. In a will, the residuary portion may be bequeathed to one person, a group (“such as my children”) or multiple individuals by specific name.
A person’s residuary estate can be quite substantial and encompass bank accounts, investment accounts, household furnishings, and the like. The size of the residuary estate is determined by the deceased person’s probatable assets at the time of their death. Life insurance and some other assets fall outside the probate process.
Even in wills where specific items are left to individual beneficiaries, properly drafted wills always determine whom residual assets go to.
If there is no such clause in the will, the courts determine who gets the assets based on state law, potentially leading to probate litigation.
Here again, a beneficiary predeceasing the testator can lead to subsequent confusion. That’s why naming beneficiaries specifically and the portion of the residuary estate each inherits is important.
And it’s why naming a “substitute beneficiary” is useful. This person would inherit any assets that couldn’t be passed to the intended beneficiary in the event of their death. In this way, you can bequeath your property to the people you intend to get it if the original beneficiary cannot.
Every family and individual situation is unique. That’s why it’s important to convey your entire situation to your knowledgeable wills attorney when creating your will and other estate planning.
It’s also important to regularly review your will to be sure it reflects your current wishes and is updated to remove any people you may have named in the will who have died since you originally drafted it.
Contact the LAW OFFICE OF GARY M. LANDAU, P.A.—Your Florida Estate Planning Attorney in Coral Springs and Parkland, FL
Do you have questions about Florida estate law, the basics of estate planning, and what happens if your heir dies before you? Instead of searching online for “lawyers for wills” or a “lawyer for wills near me,” reach out to the LAW OFFICE of GARY M. LANDAU, P.A.
With more than 25 years of experience and countless satisfied clients, Gary M. Landau and his team are uniquely positioned to help you with your probate and real estate needs in South Florida. Whether you’re ready to probate a loved one’s estate or to write your own will, or if you are purchasing a home, have inherited a home, or want a closing agent to handle title insurance and all documents for your closing or refinancing, the LAW OFFICE OF GARY M. LANDAU, P.A. is ready to work with you.
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The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.