Q: My mother has a Will that was drafted in 1995 after my father died; it names my sister and I as the only beneficiaries. My sister passed away last year leaving two children. If my mom passes away without executing a new Will, what happens to the bequest that was left to my sister?
A: There is a general rule that you cannot make a gift to a deceased person. The exception to this rule is contained in the New York State Estates Powers and Trusts Law section 3-3.3 and is known as the anti-lapse statute. The anti-lapse statute creates an inference that decedent intended to benefit the children of a predeceased child or sibling, but the statute is inapplicable when the Will provides evidence of a contrary intent. The anti-lapse statute only applies children or siblings of the decedent. It does not apply to other relatives or persons not related to the decedent.
If your mom were to pass away without executing a new Will and bequest was simply to her children without any survivorship language, then the one-half of the estate that was left to your sister would pass to her two surviving children, each child taking a one-quarter share of the estate. If you sister did not have any children, the bequest would pass to you under the law of intestate succession.
The anti-lapse statute also applies to a person who leaves a bequest in their Will to their brother or sister but that sibling predeceases them. In this situation, because of the anti-lapse statute, the bequest to the predeceased sibling would pass to their children, unless the Will provides evidence of a contrary intent or named a contingent beneficiary if that sibling predeceased the decedent.
There is often confusion when one of the beneficiaries of a Will predeceases the decedent. One way to avoid this confusion is to see an estate planning attorney to review and update your Will when a beneficiary passes away. Naming contingent beneficiaries in your Will can help to eliminate any confusion in the probate process as to who is entitled to a bequest if a beneficiary predeceases.
By: Nancy Burner, Esq. & Kera Reed, Esq.