We anticipate that our beneficiaries will outlive us when we write a will. But what happens if the beneficiary passes away before the will’s writer?
This isn’t a pleasant scenario for people, and many estate planning lawyers know that talking about who gets which assets after someone passes away feels uncomfortable. Regardless, your assets are allocated according to Texas inheritance laws without proper planning. Legal advice can give you the information you need to weigh various outcomes and make the right decisions for your family.
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How Texas Survival Requirements Impact Your Estate Plan
Under the Texas Estates Code, a beneficiary must survive the testator by five days to inherit property. This is called a survivorship period. Some wills include survivorship language, which requires the beneficiary to survive for a longer period, such as 30, 60, or 90 days, to inherit.
Your estate planning lawyer may advise against including survivorship language in wills.
However, your wishes could be complex.
Here is an example for reference: A testator’s will bequeaths a home to their nephew, so the nephew would inherit the home even if he survived the testator by 5 days. Upon the nephew’s later death, the property would pass to the nephew’s heirs per the nephew’s estate plan. If the nephew died 3 or 4 days after the testator, the home would have passed to the testator’s contingent beneficiary, a younger niece.
Incorporating a clause that disqualifies beneficiaries who die shortly after the testator ensures the property distribution aligns with the testator’s wishes. Absent such provisions, Texas law permits any beneficiary to inherit if they outlive the testator by the statutory five-day period.
Naming Contingent Beneficiaries Can Preserve Your Intentions
You should name a contingent beneficiary to whom the property will pass if the primary beneficiary does not survive your death or if they die before the stipulated survival period is complete. For example, you could name your niece as a contingent beneficiary of your home if your nephew does not survive you for the required number of days.
There is another consideration about contingent beneficiaries you should know about. If your will does not name a contingent beneficiary, or if the contingent beneficiary dies before you do, then your gift is considered to have failed or “lapsed.” Then, Texas estate laws take over the distribution of that asset.
You have options, though. Your will can contain language stating that a lapsed gift is part of your residual estate, which means that the asset, money, or property in question rolls back into your estate and will be divided according to the terms of your will or your other intentions.
Texas law also states that if multiple beneficiaries are named in your will, and one of them passes before you do, then the share allotted to that beneficiary will pass to that person’s beneficiaries. For example, if there are three residuary beneficiaries, and one dies, then the deceased beneficiary’s share of the rest of the estate will be split 50-50 between the surviving two.
Estate Planning Is Complicated – an Estate Planning Lawyer Makes it Simple
If you have specific wishes for certain assets or property to pass to specific individuals, then you should talk to an estate planning lawyer. They can help you establish a primary beneficiary and draft your will and other estate planning documents to reflect your wishes for what happens to certain pieces of property should your initial beneficiary pass away before you do.
Ideally, we update your estate plan when things change in your life. However, life moves swiftly; sometimes, we miss small details like subsequent beneficiaries. A good estate planning lawyer can review your estate plan and help protect your wishes.
