Sorting through all the legal and administrative aspects of a will can be challenging, especially during what is already a stressful and upsetting time for the family and friends of the deceased.
Here, we take a look at the role and rights of will beneficiaries, and some more convoluted scenarios involving the death of a beneficiary, which – although sad – are more common than you’d think.
What is a Beneficiary of a Will?
A ‘beneficiary’ is an individual or legal entity (such as a charity) that receives an inheritance/gift from a will. There are particular legal requirements which will help ensure that the inheritance from the will is managed and passed to the beneficiary in line with the testator’s wishes.
What Rights Does a Beneficiary Have to a Will?
A will only comes into effect on the death of the testator; until then anyone named as a beneficiary in the will has no entitlement to any of the testator’s assets. Provided that the testator has mental capacity (known as testamentary capacity for making a will), they are free to change who they have named as beneficiaries in their will at any point up until their death.
Who Can Be a Beneficiary?
Unlike some jurisdictions (such as Spain and France), when making a will in England and Wales, you have what is known as freedom of testamentary choice. This means that you are free to do with your estate whatever you choose.
Who you wish to benefit from your estate will depend on your personal circumstances. Ordinarily, if a person is married, the natural expectation is that they will leave their estate to their surviving spouse, or to their children and/or grandchildren if there is no surviving spouse .
If children are named as beneficiaries, thought needs to be given to the age at which they will become absolutely entitled to the estate. If the children are under 18, they will not become absolutely entitled until their 18th birthday. Until then, their inheritance will be looked after by the people who the testator has named as trustees in their will.
It is possible to delay the age at which the children becomes absolutely entitled to 21 or 25 if there are concerns about them not being mature enough to deal with the money at that age.
The other potential beneficiaries of a will could be other relatives, friends, organisations, and charities. The extent of their entitlement will depend on the testator’s personal circumstances.
Read more: Do I Need to Make a Will? Why Bother? How to Stop Probate
Who Inherits if a Beneficiary Dies Before the Testator?
If a will beneficiary dies before the testator, the entitlement fails and is said to have lapsed, although there are exceptions to this rule. Find out more about what happens if a beneficiary of a will dies before the testator.
This shows the importance of keeping a will under review, especially if anyone named in the will, whether that be an executor or a beneficiary, dies.
What Happens if a Person Named in a Will Is Deceased?
What happens if a beneficiary of a will dies is determined by whether there are any additional provisions in the will.
For instance, a will might specify that, should a beneficiary die before the testator, their part of the estate would go to another named person. In the absence of such a clause, the share which the deceased beneficiary would otherwise have received will fall into the residue of their estate and be distributed between the other beneficiaries.
It’s also worth considering, what happens if a person named in a will is deceased, but they have children of their own? Unless there’s a clause in the will specifying otherwise, if the beneficiary was a direct descendant of the testator, the part of the estate left to the deceased beneficiary would automatically pass on to their children.
Who Inherits if a Beneficiary Dies After the Testator?
In some instances, a gift can be subject to conditions. If the beneficiary does not meet the requirement(s), the beneficiary’s estate will not be entitled to the benefit.
An example of when this can happen is if a testator has left a gift to a child/grandchild for them to receive when they reach a certain age, and the will beneficiary dies before the age is reached. If the conditions are not met, the benefit cannot be claimed by the beneficiary’s estate.
What Happens if a Beneficiary of a Will Dies Shortly After the Testator?
What happens if a will beneficiary dies shortly after the testator depends on the terms of the testator’s will. It may be that there are no conditions on the beneficiary surviving the testator by a certain period of time before they become entitled. If that is the case, then the beneficiary’s share of the estate will form part of their own estate passing under any will they may have made.
There may, however, be a condition included in the will that a beneficiary has to survive for a certain period of time (quite often 28 days) before they become entitled. This is known as a survivorship clause.
If a beneficiary dies before that period, they do not become entitled, and so it does not form part of their estate passing under their will. Instead, what happens to their share will be determined by the rest of the testator’s will. This could be that it goes to another named beneficiary, or back into the residue to be distributed between the other beneficiaries.
What Happens When a Beneficiary Dies During Probate?
The administration of an estate can take up to 12 months to complete, depending on the assets in the estate (if there is a house to sell, for instance). If during this administration period a will beneficiary dies, what happens to their share of the estate will depend on the terms of the testator’s will.
If there is no survivorship clause, the deceased beneficiary’s share will form part of their estate, passing under the terms of any will they may have made. If, however, there is a survivorship clause, the terms of the will may state for it to go to a named beneficiary or fall back into the residue of the estate to be distributed to the other beneficiaries named in the will.
Howells Can Help With All Your Probate Questions
If you need to speak with an experienced solicitor regarding wills, probate or asset management, and find out more about the intricacies of issues such as what happens if the beneficiary of a will dies, please get in touch. Our friendly team of solicitors are happy to help.
