When drafting a will, planning for future events is crucial in the process. Having a beneficiary pass away is an unexpected event that often isn’t planned for accordingly. This could happen either before the will-maker dies or after the will-maker dies in some cases.
An estate is all the assets and liabilities that a person has. Upon death, this estate is gifted to what is called a beneficiary.
The estate is normally distributed by looking at the details included within a will. This will includes not only who you want to receive the estate but who you want to carry out these directions.
Having a beneficiary is important when drawing up and executing your will. Sim can help you with the process of designating a beneficiary and getting your affairs in order for when the time comes.
We all have unexpected events that happen in our life, and the premature passing of a designated beneficiary can be one of those things you don’t foresee happening. However, this does occur, and we want you to be prepared just in case it does.
So you are wondering, what happens when the beneficiary dies before or after the will-maker passes away? This is what is called a “lapse.” A lapse is when the gift of an estate can not be distributed to the intended recipient.
Most people who make a will don’t intend for the beneficiary to pass away before they do, but it does happen. We are going to look at what happens if the beneficiary dies before the will-maker does in this instance.
A big determination of what happens is the time frame of when the will is executed. Executing a will is the signing of it and this makes it legally binding.
If the beneficiary dies before the will is executed, the gift to the beneficiary is considered void.
If the beneficiary dies after the will is executed and is a relative, the estate will go to the heirs, or devisees of the beneficiary, instead of the heirs of the will-maker.
Unless it is specifically stated otherwise, if a beneficiary dies after the will-maker, but the estate has not been distributed, then the share of the estate generally goes to the deceased beneficiary’s estate.
If this is not an option, the beneficiary’s share of the estate goes back into the will-makers estate to be determined as to who the new beneficiaries will be.
For example, if a house was left to a beneficiary after the passing of the will-maker, and then the beneficiary happened to die, the house would go to the designated beneficiaries, or heirs, depending on if the beneficiary had a will or not.
After numerous law reform commissions and disheveled beneficiaries complained, Canada changed some of the rules as to what happens when a beneficiary passes away before the testator.
Obviously the beneficiary who has passed cannot receive the gift from the testator, but what happens to it then?
It used to be that the gift to the beneficiary would fall back to the testator’s estate as if the gift had never been enacted. This anti-lapse legislation ensures this doesn’t happen.
This legislation ensures that there is no failure of gifts to close relatives of the will-maker. Section 31 of Ontario’s Succession Law Reform Act includes gifts made to sisters, brothers, children, and grandchildren of the testator.
Unless an intention is specified in the will of the testator, if a gift is made to one of these relatives, and the relative is deceased when the testator dies, then the gift will go to the descendants of the beneficiary.
If there are a spouse and children both as the descendants of the beneficiary, then the estate will be shared equally amongst the spouse and the children.
In the case of a lapsed gift, Section 46 of the Wills, Estates, and Succession Act, “WESA,” contains an anti-lapse ruling which determines the process of determining alternative beneficiaries.
Sim Gakhar will help assist you so that you don’t run into a problem like this in the future.
One of the things that is recommended in the planning of the will is to add contingent beneficiaries so if something like this happens there are additional people that can be referenced in case a beneficiary passed away.
You don’t want to run into a case where it is unclear who the beneficiary will be. It is encouraged to always keep the will-makers affairs up to date just in case an issue such as this arises.
Contacting an agent such as Sim will ensure that all the details of your estate are thoroughly gone through and in order.
Sim can help you with a contrary intention, which is a stipulation put in a will if something happens such as this. The last thing you want is for your estate to be distributed in a fashion that you didn’t intend on.
This ensures that if the beneficiary of the estate happens to die, there is a plan in place that will satisfy your intentions of who you want to be the receiver of your estate.
It never hurts to think of all the possibilities when planning the distribution of your estate, and that’s what I am here for.
As you can see, there are a lot of details that are necessary in the planning of an estate, and that is what Sim is for. Being prepared for an instance like this rather than not is our intention.
No one predicts things like this to happen, but we are here to assist you just in case the unthinkable does happen.
Sim Gakhar is available to answer all your questions and concerns and help you through the process of planning the distribution of your estate should unforeseen events arise.
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