Let suppose that after you pass away, your leave your assets to a beneficiary who then passes away soon thereafter. What happens to those assets you leave them? Sometimes, a beneficiary will survive a testator but not long enough for the decedent’s estate to be probated and distributed. In these cases, the beneficiary is called a “post-deceased beneficiary.” Since the beneficiary survived the decedent but did not yet receive their share of the decedent’s estate, the beneficiary’s estate is now entitled to the beneficiary’s share, and it will be distributed according to their will or the laws of intestacy governing their estate if they did not have a will in place.
To illustrate, a mother is survived by her two children, Cameron and Charles, and her Will states that her estate is to be distributed equally between her two sons or if one them died before her, then 100% to the survivor of them. Unfortunately, Charles dies two months after his mother and before the mother’s estate is distributed. Charles’s estate is still entitled to receive his one-half share of her estate rather than the entire estate going to Cameron. This is because Charles did in fact survive his mother, even though he never got to personally enjoy his share of the estate. Charles’s Will now dictates what happens to his one-half share of his mother’s estate, whether it says that his share goes to his wife, his brother, his children, a friend, or a charity of his choice.
Some people may find this result undesirable and would prefer that the estate go entirely to the mother’s surviving son or to Charles’s children seeing that Charles never got to enjoy the bequest. An estate planning attorney can help you deploy certain tools in your estate plan to ensure that your estate is distributed to your intended beneficiaries even in the event that you name a beneficiary who becomes a post-deceased beneficiary. A common way to do this is with a testamentary trust in your will that dictates what happens to your estate at your beneficiaries’ deaths.
A fiduciary must be appointed for the post-deceased beneficiary’s estate before their share of the original decedent’s estate can be distributed. If the post-deceased beneficiary died testate (with a will), the executor of their estate will receive the funds and distribute them according to the terms of the will. If they died without a will (intestate), an estate administrator will need to be appointed to distribute the funds in accordance with laws of intestacy of the state where the post deceased beneficiary resided. The laws of intestacy dictate the order of priority and percentage a distributee will receive from an estate.
If no fiduciary is appointed for the post-deceased beneficiary’s estate, the original decedent’s estate representative will need to file an amended probate petition listing the decedent’s distributees. The Surrogate’s Court will then need to secure jurisdiction over all these additional distributees with either a Waiver or service of a Citation. It is generally preferable for the post-deceased beneficiary’s estate to have a fiduciary appointed because it simplifies the administration process of the original estate.
If you find yourself in this situation and want to discuss your specific situation with an attorney, feel free to call the Law Offices of Roman Aminov, P.C. for a free phone consultation at 347-766-2685.
This article is for educational purposes only - to provide you general information, not to provide specific legal advice from Roman Aminov. Use of this post does not create an attorney-client relationship and information contained herein should not be used as a substitute for competent legal advice from a licensed local estate attorney in NY or your state.
