As part of planning your estate, you may want to gift your assets to someone -- that is, to leave someone an inheritance. The assumption when considering inheritance is that your heir will outlive you. However, this doesn't always happen. For this reason, you should understand what happens if you outlive your heir. This will depend on probate regulations and how you word your will.
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Probate Regulation Variance
Probate regulations vary from state to state. For this reason, where you live is the primary determinant of what happens should an heir pass away. You may contact the probate court for your jurisdiction to find out the probate laws in your state, or you may consult with a probate attorney.
Heir Dies With Descendants
Typically, if an heir is a descendant or sibling of the person who had the will (the testator), and the heir also has descendants, the gift of the testator passes to the heir's descendants. This often is the best course of action for two reasons: It ensures family assets stay within the family, and it follows the general pattern of individuals wanting to leave their assets to their children. In most cases, however, wills have a right of survivorship clause, which basically means the heir has to outlive the testator to be entitled to the inheritance. If such a clause exists and the heir dies before the testator, the inheritance would go to a residuary beneficiary, if named, or into the testator's estate.
Heir Dies With No Descendants
When an heir dies and has no descendants, courts generally look to see whether a residuary beneficiary is named in the will. A residuary beneficiary is basically an alternate heir who gets the inheritance if the primary heir or heirs pass away. Residuary beneficiaries do not need to be siblings or family members, although they often are, but they should be people whom you trust to handle the gifted assets.
Heir Dies With No Descendants, No Residuary Beneficiary Named
If an heir dies with no descendants and no residuary beneficiary is named in the will, the inheritance generally goes into the estate of the testator. If this happens, the inheritance may be distributed among any individuals who file a legitimate claim against the estate. This usually is the least desirable pattern of events, as the testator loses control over how the court ultimately disperses the inheritance assets.
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