What Happens if a Will Beneficiary Dies Before the Maker of the Will?

What happens if a person leaves a beneficiary an inheritance by way of a will, but the beneficiary then dies before the person making the will? Are the beneficiary’s heirs entitled to the inheritance, or does the inheritance revert back to the will maker, to be distributed as residual assets of the estate? This article answers that question. The short answer is that “it depends”.

Like many states, California has enacted a so-called “anti-lapse” statute to address the issue, set forth in California Probate Code §21110. Section 21110 states that if a beneficiary does not survive the person making the will, then “the issue of the deceased transferee take in the transferee’s place.” This means that the bequest would pass to the beneficiary’s heirs. This prevents the bequest from “lapsing” and overrides California’s intestacy laws, which describe who gets someone’s property if they die without making a will.

For example, if a daughter were to inherit $200,000 from her father, that $200,000 transfers to her at the father’s death. However, if the daughter dies before distribution of the father’s estate, the $200,000 would then pass to the daughter’s beneficiaries or heirs-in-law, depending on whether she had a Will.

However, there are exceptions to this rule of law. Section 21110 controls only if the deceased beneficiary’s heirs are blood relatives of the will maker or his/her spouse. If the beneficiary who has died left all her property to a non-family member in her will, then she cannot accept the bequest and it instead reverts back to the original testator’s estate.

The purpose of California’s anti-lapse statute is to accomplish what the will-maker most likely would have wanted given the unforeseen death of the beneficiary. When California’s anti-lapse statute applies, the statute passes the property to the issue, heirs, or devisees of the predeceased beneficiary, instead of to the residuary legatees or heirs of the Will-maker.

The statute can be overridden with appropriate estate planning techniques. For example, if a will states, “I leave $10,000 to my brother if he shall survive me, otherwise this gift shall lapse,” then if your brother dies before you, his issue (kindred) would not automatically receive the $5,000 under the anti-lapse statute. Instead, the property gifted to the predeceased beneficiary will likely pass under California’s “intestate succession” laws attributable to the will-maker, just as if there was no will.

The will can also provide for an alternative taker of the property in the event the beneficiary dies before the will maker. For example, the will may include two or more options for their property if someone passes away before they do. For example, the will language can state “should Tom predecease me, my vehicle shall go to Lisa instead.” In that case, the will language controls. The property would go to Lisa if Tom died before the will maker.

If no alternate was listed, the devise may go to the estate of the testator. This is known as a devise reverting back to the estate and going into the residuary estate. This is the portion of the estate that is left after all debts and claims are satisfied and all specific distributions, gifts and bequests have been distributed to the named beneficiaries.

In summary, California Probate Code §21110 only applies if the deceased beneficiary’s heirs are blood related to the will maker or to his/her spouse. The anti-lapse statute is intended to keep property in the family; it assumes that the beneficiary who died was related to the testator.

Please contact us if you have any questions regarding the above, or if you would like further information on our services. We can be reached at 888-441-2355 or Our experienced professionals are standing by to answer any inquiries you may have.

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