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Probate Process - What Happens if a Beneficiary Dies During Probate?

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  • If a beneficiary of an estate survives the decedent but then dies while the estate is still being probated by the probate court, then usually the deceased beneficiary's share of the estate will become a part of the beneficiary's own estate. If this is the case, then one of two things will happen:

    1. If the deceased beneficiary had a Last Will and Testament, then the deceased beneficiary's share will pass under the terms of the Last Will.
    2. If the deceased beneficiary didn't have a Last Will and Testament, then the deceased beneficiary's share will pass in accordance with the intestacy laws of the state where the beneficiary lived at the time of his or her death.
    There is an exception, however, if the beneficiary dies within a relatively short time after the original decedent's death. If this is the case, then one of two things will happen:
    1. If the original decedent had a Last Will and Testament, then the terms of the Last Will may dictate the period of time that a beneficiary must survive beyond the original decedent's date of death in order to take a share of the estate.
    2. If the original decedent's Last Will doesn't dictate the period of time that a beneficiary must survive, or if the original decedent didn't have a Last Will and Testament, then the probate laws of the state where the original decedent lived will dictate the period of time that a beneficiary must survive beyond the original decedent's date of death in order to take a share of the estate.
    For example, if the original decedent's Last Will states that all beneficiaries must survive by 30 days in order to take a share and a beneficiary survives the decedent but then dies 15 days later, then the beneficiary will be deemed to have predeceased the decedent. If this is the case, then the deceased beneficiary's share will pass either in accordance with the terms of the decedent's Last Will if there is one or under the provisions of the state intestacy laws if there isn't a valid Last Will. But what if the beneficiary survives the decedent by 31 days? Then the beneficiary will take a share of the estate.

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