What Happens if Your Heir Dies Before You Do? An Experienced Florida Estate Planning Attorney Reveals Crucial Insights

Get The Legal Help You Need

By Gary M. Landau, Esq.

Call (954) 979-6566 Today
What Happens if Your Heir Dies Before You Do? Experienced Florida Estate Planning Attorney Reveals Crucial Insights | Call (954) 979-6566

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.

Quick Frequently Asked Questions

1. Who exactly qualifies as a “blood beneficiary” under Florida’s Anti-Lapse Statute?
Under Florida Statute § 732.603, the Anti-Lapse protections are not universal. They only apply if the predeceased beneficiary was a grandparent or a lineal descendant of a grandparent of the testator (the person who made the Will). This includes your children, grandchildren, siblings, nieces, nephews, aunts, and uncles. If you leave a gift to a stepchild, a friend, or a spouse who dies before you, the Anti-Lapse Statute generally does not apply, and the gift will “lapse” into the residuary estate unless your Will specifically names a substitute.

2. What happens if the testator and the beneficiary die at the same time?
Florida follows the Uniform Simultaneous Death Law (§ 732.601, Fla. Stat.). If there is no “sufficient evidence” that the individuals died otherwise than simultaneously (such as in a common accident), the property of each person is disposed of as if they had survived the other. This prevents the estate from being probated twice in rapid succession. For example, if a husband and wife die simultaneously and each named the other as their sole beneficiary, the husband’s assets would pass to his alternate heirs, and the wife’s assets would pass to her alternate heirs.

3. If my named Personal Representative lives out of state, can they still serve?
Yes, but only if they meet the strict “blood relative” exceptions. According to Florida Statute § 733.304, a person who is not a resident of Florida cannot qualify as a Personal Representative unless they are:

  • A legally adopted child or adoptive parent of the decedent;

  • Related by “lineal consanguinity” (parents, children, grandparents, etc.);

  • A spouse, brother, sister, uncle, aunt, nephew, or niece;

  • Or the spouse of one of the relatives listed above. If you name a best friend who lives in another state, they will be legally disqualified from serving by the Florida probate court.

4. Can an heir “disclaim” or refuse an inheritance if it would be better for their own children to receive it?
Yes. Under Chapter 739, Florida Statutes (the Florida Uniform Disclaimer of Property Interests Act), a beneficiary can sign a written “disclaimer.” Legally, the person disclaiming is treated as if they had predeceased the testator. This can be a strategic move: if the Anti-Lapse Statute applies, the inheritance would then pass directly to that person’s descendants, potentially avoiding certain taxes or creditor claims that might have attached if the parent had accepted the gift first.

5. What is the legal priority for appointing a Personal Representative if all the people I named in my Will have died?
If the primary and backup Personal Representatives named in your Will are both deceased, Florida Statute § 733.301 establishes the “order of preference” for the court. The priority for appointment is:

  1. The person selected by a majority in interest of the beneficiaries.

  2. A beneficiary (or a person nominated by a beneficiary) who is “nearest in degree” to the decedent.

  3. If no one fits the above, the judge may appoint any “qualified person” to serve as the Personal Representative.

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.

Call our office at (954) 979-6566 or complete our online form today to schedule a free consultation. We work with our clients in person, over the phone, or on Zoom.

Copyright © 2023. LAW OFFICE OF GARY M. LANDAU, P.A. All rights reserved.

The information in this blog post (“post”) is provided for general informational purposes only and may not reflect the current law in your jurisdiction.

LAW OFFICE OF GARY M. LANDAU, P.A.
7401 Wiles Road, Suite 204
Coral Springs, FL 33067
(954) 979-6566
https://garylandau.com/

0/5 (0 Reviews)

Frequently Asked Questions

A will is the simplest way to ensure that your funds, property and personal things will be distributed after your death the way you want them to. Even if you have very few assets, you will benefit from having a will. About half of all Americans die without a will (known in legal terminology as dying intestate). Without a will to indicate your wishes, the court steps in and distributes your property according to state law. A will ensures that your assets will be given to family members or other beneficiaries you designate.

 

Having a will is doubly important if you have young children. One section of the will allows you to designate a guardian for them in the event of your death. Without a will, the court will appoint a guardian for your children, who may not be the person you desire.

Many Florida residents have out-of-state wills, drawn up while they were still living among the hills of North Carolina or the hubbub of New York. If the will was valid according to your old state’s laws at the time you made it, it is still legal in Florida. However, if you are a Florida resident, you may benefit greatly by having a new will drawn up in Florida, because it will likely be more easily admitted to probate.

 

It is important to know that each state has its own requirements for what makes a will a legally binding document. For example, Florida doesn’t recognize handwritten wills that haven’t been witnessed (known as “holographic wills”), or oral wills not put into writing, even if other states okay them. There’s also the matter of Florida estate law. In this state, for example, your surviving spouse is entitled to 30 percent of your net probate estate, regardless of what you say in your will. The spouse may also have a “Homestead” interest in property you share here, even if you want your house to go to someone else. In fact, all real property owned in Florida will be subject to this state’s laws, even if you’re a snowbird maintaining a residence in the state where your will was drawn up. Other peculiarities also exist, which is why a Florida will could make things much easier for your heirs.

 

If you would like to have me review your current out-of-state will, I am happy to do so without charge. If it turns out to be in accordance with Florida state laws and procedures, you can continue to rely on it. If not, however, your heirs would rather you discover that now.

It is a good idea to re-read your will every few years to be sure it reflects up-to-date realities (you may not want to leave your heirloom to a niece you are no longer speaking to, nor have someone be named your child’s guardian if they have taken seriously ill since you drafted your will). It is especially important to reexamine your will if:

 

  • You have gotten married since it was last drafted;
  • You have made bequests to people who have fallen out of your favor or are no longer living (I recently updated the will of a man who had left everything to his first wife, who was long deceased), or you have not included people who are now dear to you;
  • You would like to change the person named as the personal representative of the estate. (Note: Florida law does not allow a nonresident of the state to serve in this position, unless it is an immediate family member or certain other relatives);
  • You have acquired pricey or sentimental items that are not accounted for in your will. Do note, though, that Florida law allows you to attach a separate personal property memorandum to your will, detailing who will get which specific items. This list can be changed whenever you want.

Perhaps I should answer this question with where not to store it: in a bank’s safety deposit box. Although it may seem logical to put this with your other important papers, it is often difficult for your heirs to gain access to the box once you die, since the box is sealed then and must be opened in the presence of a bank employee.

 

One good option is to leave your original will with the attorney who drafted it, making copies for your personal representative and other important relatives and letting them know who has the original. For my clients who prefer that I store their original will, I keep it in a fireproof will vault in my office, or in the vault in my bank.

 

As an alternative, you could store the will in a fireproof box or vault in your own home.

 

Wherever you store it, be sure to let your personal representative and other close relatives know where you have put it!

Probate is when the court oversees your assets and liabilities after your death. During probate, the court makes sure that your will is valid and acceptable; that all debts, bills, creditor’s claims, and taxes are paid from your estate’s assets; and that your remaining assets are distributed to your beneficiaries according to your will (or, if no will exists, by Florida law).

 

Probate usually does take longer than most beneficiaries would like. But in order to ensure that everyone with a right to a claim is included in the process, the court requires several steps. If the size and complexity of your estate are minimal, however, the entire process of probate can take as little as a few months. Larger estates that are subject to IRS estate taxes or those involving litigation on the part of creditors or heirs generally take longer, often one or more years.

 

To speed the process along for simple and small estates, the courts allow a shortened form of probate, known as “summary administration,” which requires much less paperwork and time.

A personal representative (PR) is a friend or relative, or an attorney or bank, who is put in charge of the estate until all matters regarding the probate are resolved. (In other states, this person is sometimes called an executor or administrator.) The job of the PR includes identifying all assets, searching for creditors and paying valid claims, filing required estate tax returns if the estate is large enough (the figure escalates over time, according to Congressional laws), coordinating with the probate court and attorneys, and overseeing the distribution of assets–all done under the guidance and assistance of a qualified attorney.

 

Serving as a PR is an important role, and such a person should be selected with care as to who is most willing and best able to serve in this position. By Florida law, your personal representative must be over 18 years of age, and be a blood relative, your spouse, the parent or child of your spouse, or a Florida resident.

Generally, no. If you co-own all property via such legal structures as “tenancy by the entirety” or by “joint tenancy with right of survivorship” the property immediately passed to you upon your spouse’s death. Proof of death is usually all that is needed to pass such jointly owned title for cars, stocks, and other personal property to the surviving spouse.

 

But if even one asset was held solely in the deceased person’s name, or any property is owned in the form of a “tenancy in common,” that estate will be required to go through probate. If the assets are limited, the shorter, simpler form of probate is generally all that is required.
Scroll to Top