What Happens If Someone in My Will Dies Before I Do?

You signed your will years ago and left a share to your brother. Then your brother died, and the will is still sitting in the drawer with his name in it. It is a question that comes up in probate all the time, because few people update a will after a beneficiary dies.

The answer depends on two things: how the person was related to you, and what your will says about survival. Under RCW 11.12.110, if the beneficiary who died first was a descendant of one of your grandparents and left descendants of their own who outlive you, those descendants step into the gift. If the beneficiary was anyone else, or left no descendants, the gift generally fails and passes with the rest of your estate, the result RCW 11.12.120 describes. A will can change either result, and a well drafted one usually does so.

Which Relatives Does RCW 11.12.110 Protect?

The statute covers a gift to "any issue of a grandparent" of the person who made the will. That phrase is wider than it sounds. It includes your parents, your aunts and uncles, your brothers and sisters, your cousins, your nieces and nephews, and your own children and grandchildren.

Who falls outside the phrase matters just as much. A spouse is not a descendant of your grandparents. Neither is a stepchild you never adopted, a son-in-law or daughter-in-law, a friend, or an unmarried partner. A gift to any of them gets no help from RCW 11.12.110 if they die first.

This matters most in blended families. Suppose a husband leaves everything to his wife, and she dies a year before he does. Her children from her first marriage do not take her place under this statute, because she was not within the protected group. Unless the will names them as alternates, what he intended for her passes to someone else. The same statute, and the same gap, applies to a trust you created that becomes irrevocable at your death.

Who Takes the Gift Instead?

When RCW 11.12.110 applies, the gift goes to the descendants of the deceased beneficiary who survive you, and they take what the beneficiary would have received. If those descendants are all in the same generation, they share equally. If they are in different generations, the more remote ones take by representation, meaning they divide the share their own parent would have taken.

Notice what the statute does not do. It does not send the gift to the deceased beneficiary's spouse, and it does not follow the deceased beneficiary's own will. The gift goes down the family line, to your brother's children or grandchildren and not to his widow, and only if at least one of them outlives you.

What Happens When a Gift Lapses?

A gift that is not saved is said to lapse. RCW 11.12.120 describes where a gift conditioned on survival goes, and the same result generally follows for other lapsed gifts. It falls into the residue of the estate, which is everything left after the specific gifts are handed out, and it is distributed under the will's residuary clause. If the will has no residuary clause, the property passes under the intestacy statutes, as if there were no will for that asset. The article on what happens if you die without a will explains who inherits then.

The residue has its own rule. If you leave the residue to two or more people and one of them dies first, RCW 11.12.120 gives that share to the other residuary beneficiaries in proportion to their interests, unless the will says otherwise. That rule is subject to RCW 11.12.110, so if the residuary beneficiary who died was within the protected group of relatives and left surviving descendants, those descendants come first.

How Can a Will Change These Default Rules?

Both statutes open the door with the same words: "unless otherwise provided." The defaults apply only when the will is silent.

The most common way to override RCW 11.12.110 is a survival condition. RCW 11.12.120 says that when a will makes a gift on the condition that the person survive the testator and the person does not, the gift lapses and falls into the residue unless the will provides otherwise. The Court of Appeals applied that idea in In re Estate of Rehwinkel, 71 Wn. App. 827 (1993). The will there left the residue to those of a list of named relatives "who are living at the time of my death." A niece on the list died about a month before the testator, and her son claimed her share under RCW 11.12.110. The court held that the survival language showed a clear intent that the statute not apply, so the son took nothing.

A few words that look like boilerplate, such as "if she survives me," can cut out a whole branch of the family. The cleaner approach is to say what happens next: name an alternate beneficiary for each gift, or state plainly that a deceased beneficiary's share goes to that person's descendants.

Three Related Traps

A separate list of belongings works differently. Washington lets a will refer to a signed list that gives away tangible personal property, such as furniture and jewelry. Under RCW 11.12.260, if a person named on that list dies before you and the list gives no further direction, the gift lapses, and RCW 11.12.110 does not apply at all, even if the person was your own child. The article on leaving a separate list of belongings with your will covers how those lists work.

Surviving you also means more than outliving you by a few minutes. Washington requires a beneficiary to survive by 120 hours unless the will says something different, which is explained in the article on Washington's 120-hour survival rule.

Finally, divorce can produce the same effect as a death. Under RCW 11.12.051, when a marriage ends after the will was signed, the will is read as if the former spouse failed to survive the testator, unless the will expressly says otherwise.

A Worked Example

Helen, a widow in Everett, signs a will leaving $50,000 to her sister Ruth, her car to her friend Dale, and the residue in equal shares to her two sons, Mark and Paul. The will says nothing about what happens if a beneficiary dies first. Ruth, Dale, and Paul all die before Helen.

Ruth is a descendant of Helen's grandparents, and she left two children who outlive Helen. Under RCW 11.12.110, those two children split the $50,000. Dale is a friend, so his gift lapses and the car becomes part of the residue. Paul is Helen's son and left one daughter, so his half of the residue goes to her. If Paul had left no descendants, his half would have passed to Mark as the other residuary beneficiary.

Those results might match what Helen wanted, or they might not. The statutes are a guess about her wishes, made because her will did not say.

Keep Your Will Current

A death in the family is one of the clearest reasons to review a will, and the fix is usually simple: name alternates and say who takes if a beneficiary dies first. The Law Office of Chad Foster drafts and updates wills for individuals and blended families. Call 425.785.8679 to talk with a Snohomish County estate planning attorney about closing the gaps in yours.