We’ve discussed various forms of estate planning in this blog, including the use of both trusts and wills in attempting to give voice to the intent of the testator (i.e. the person whose estate is in question). We have also talked about the form wills need to take to be valid, and some of what may cause a will to be contested in probate court. But what happens if someone who is supposed to inherit probate assets dies before the testator?
This possibility is one reason that you should update your will periodically; to make sure that it takes more recent events into account. But, if a beneficiary dies before the testator a couple questions need to be answered. First, does the will make provision for such an occurrence? For example, FL Statute 732.603(3)(a) states that words such as “if he survives me” or “my surviving children” is enough indication of intent that whatever is devised to them only goes to them if they are still living. Generally, if this language is there and the heir is deceased, the probate assets devised to that heir would go to whomever the will provides as secondary heir for those assets, or else fall into the residue of the estate. However, FL Statute 732 also makes provision that if the intent of the testator, by the language of the will, is not contrary, if the predeceased heir is a grandparent or descendant of a grandparent of the testator, the devised property would go to that heir’s surviving descendants, divided among them. This law assumes that most testators want to keep their assets in their immediate family, such as parents, children, grandchildren, aunts, uncles, nephew nieces etc., absent some expressed wish to the contrary.
As you can see, depending on the wording of the will, some heirs might be tempted to challenge a document which they find ambiguous in probate court. The above is not intended as legal advice, and every situation is different, so if you have questions about the wording of a will or want to make sure yours does what you want it to do, consider consulting an experienced Florida estate planning attorney.