What Happens if a Will Recipient Dies Before the Maker of the Will?

So your loved one planned ahead and made a will—kudos to them. Having an estate plan in place may seem superfluous for the young and healthy, or for those without particularly large estates, but when tragedy strikes, it can be a sanity saver for your loved ones during what is already an incredibly stressful time.

But what if the relative’s last will and testament hadn’t been amended in years, and left portions of their estate to relatives who are no longer alive? Does this void the entire document? If not, what happens to the assets bequeathed to that individual?

The answer to the first question is “No.” However, answering the second is a bit more complicated. The first complication is knowing which model of distribution your state uses. There are three (3) different models states use to govern the distribution of estate and inheritance assets: “per stirpes,” “per capita with representation,” and “per capita at each generation.” A state’s per stirpes or per capita laws kick in if a person dies without a will (this is called dying intestate), or in the event that one of the parties set to inherit under a will predeceases the creator of that will (known as the “testator.”)

Once you know which method of distribution your state uses, you then face the complicated task of calculating each living members distribution.

Per Stirpes

A per stirpes state (the term is Latin, not a typo) distributes estate assets on a class-by-class basis, i.e. by generation or degree of relation to the deceased. Roughly one-third of the States use this model of estate distribution. If a person dies intestate, meaning without a will, then each living child will be given one equal share. If a child has predeceased the decedent, then their share is redistributed to their children in the same manner. This is the same for a person who creates a will but the would-be inheritor dies before the testator.

Per Capita

A minority of States, including North Carolina, follow this model of estate distribution. “Per capita” literally means “by the head” in Latin; an easy way to understand this model of distribution is that the portion of the estate a relative will receive depends on the head count of the other relatives in that class.

The initial division of the estate will begin at the first generation of descendants with at least one living member. One share of the estate will be given to each living member. If a member of the class dies before the will’s testator, then the deceased relative’s with be allocated a share so long as they have living descendants. The key difference under per capita at each generation is that the deceased member’s descendants shares will be calculated by the number of all the descendants of the next generation. The premise behind this method of distribution is that all persons of the same generation are equally related to person who made the will and, therefore, should get an equal share. This form of distribution can require complicated calculations of fractional shares, as the shares must be recalculated at each generation with a living descendant per the number of members in that generation.

Per Capita

About half of the states follow a “per capita with representation” model. In a state using per capita with representation, the estate is first equally divided among the nearest generation with a living member. One share of the estate is allocated to each living person and one share to each deceased person who has living descendants. That deceased person’s share will then be distributed among their descendants, not all the members of the next generation as in per capita at each generation, using the same method. The difference between this method and per stirpes becomes more obvious as you make your way down the generations.

The 120 Hour Rule

A related rule in North Carolina specifies that if a would-be inheritor under a will dies within 120 hours, or five (5) days, of the will’s testator, then that individual will be viewed as having predeceased the testator. If this occurs, the “per capita at each generation” rules would apply as to how that person’s share under the will is distributed.

As demonstrated here, inheritance and estate law are complex topics regardless of the state in which you live. They are further complicated by states adding further variations and conditions not discussed above. If you are facing the administration of a loved one’s estate or have any other issues concerning wills, trusts and estates, please contact Arnold & Smith, PLLC for a consultation with one of our estate law attorneys in Charlotte, Mooresville, and Monroe.