What Happens if the Beneficiary Dies After Will Probated but Before Estate Settled?
When a beneficiary dies after Will is probated but before the distribution of an Estate, that person is known as a “post deceased beneficiary” A post deceased distributee is a person who dies after another person who did not leave a Will.
Since the beneficiary of a Will or distributee of an estate was alive when Decedent died, the bequest vests with the beneficiary or distributee and thereby passes to his or her estate to be distributed in accordance with his or her Will, or if none, then according to the intestacy rules governing that person’s estate.
For example, Bob dies survived by his three brothers, Daniel, Emery, and Frank. Prior to Bob’s death, he leaves a Will leaving everything to his three brothers. Three months after Bob dies, Frank dies. Although Frank has died, the portion of Bob’s estate that was left to Frank still goes to Frank’s estate.
Does a Fiduciary have to be Appointed for the Post Deceased Distributee?
The estate of the beneficiary of a Will who has died, is still entitled to the distributive share. In order to collect this share, one of two things needs to happen. Either an Executor or Administrator must be appointed for the post deceased beneficiary of a Will, or all of the distributees of the post deceased beneficiary of a Will must be identified and either noticed or cited, depending on the relationship between the original decedent and post deceased beneficiary.
Going back to our example, following Frank’s death, if Frank is survived by spouse and children, then either Frank’s spouse or children have to become appointed Executor or Administrator of Frank’s estate. Once appointed, they can act as the point person for Frank’s estate and ask Bob’s estate to distribute Frank’s share of the pie to Frank’s representative.
(Practical point: It is sometimes better to have a fiduciary appointed for the post deceased beneficiary or distributee when there are creditors because the creditors can be satisfied before the funds are distributed to each individual beneficiary).
What if a Fiduciary is Not Appointed for the Beneficiary of a Will who Post Deceases?
Alternatively, if a representative will not be appointed for Frank, then the personal representative of Bob’s estate will need to file an Amended Probate or Administration petition and list Frank’s spouse and children as the new beneficiaries or distributees. Once the probate or administration petition is amended, then the Court will need to secure jurisdiction over Frank’s spouse and/or children. To this end, the interested parties will be required to either execute a Waiver or be served with a Citation.
(Practical point: It is easier to have a fiduciary appointed for the post deceased beneficiary or distributee as this simplifies the number of people who are listed on the Amended probate petition and over whom jurisdiction needs to be secured).
Other Issues with Post Deceased Distributees or When Beneficiary Dies After Will Probated
Sometimes you may need to become administrator or executor of one estate, pursuant to SCPA 1001.4 before becoming executor of another estate.
In a more complex situation, imagine that Betty’s grandmother, Cally died in 1980. Betty’s mother, Deborrah died in 1990. Betty has now discovered that Cally owned stocks that were in her name. Betty cannot petition to become Administrator of Cally’s estate directly. This is because at the time that Cally died, Deborrah was alive and was eligible to serve as Administrator pursuant to SCPA 1001.4. Betty must, therefore, first petition to become Administrator of Deborrah’s estate. Once she is appointed Administrator of Deborrah’s estate, she can petition to become appointed administrator of Cally’s estate in her capacity as Administrator of Deborrah’s estate.
You may be thinking – SCPA 1001.1 says that the granddaughter is eligible and can petition. However, because the daughter died after the grandmother, we must look at SCPA 1001.4. And under SCPA 1001.4, Betty must first petition to become administrator of her mother’s estate before petitioning to become administrator of her grandmother’s estate.
We can help you navigate through the complexities of having to deal with post deceased beneficiaries or post deceased distributees.
For more information, please contact NYC Probate Litigation, Guardianship, NYC Probate and Estate Planning attorney Regina Kiperman:
Phone: 917-261-4514
Fax: 929-556-2089
Email: rkiperman@rklawny.com
Or visit her at:
40 Wall Street
Suite 2508
New York, NY 10005
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