Anti-lapse statute in New York state

[pandaman]

I have a question about the anti-lapse statute in New York state. If a beneficiary of an estate in NY dies before the distribution, what happens to that beneficiary's share? Here is whats happening. My mother, who never remarried passed away 3 years ago. In her will she listed me and my two brothers as her beneficiaries. Due to complications, its taken this long ( 3 years ) for the estate to sell property and generate income. Now there is cash and we are ready to distribute, BUT...

In the meantime, one of my brothers also passed away.

I believe prior to the anti-lapse statute, that brother's share would go back into my mom's estate and be equally distributed to the remaining beneficiaries.

The way I understand it, the anti-lapse statute was designed to direct that money to the deceased beneficiary's children ( the way grandma would want it ).

However, my deceased brother was married but did NOT have children. What happens to his share? Does it go to my mom's surviving beneficiary's or does it go to my deceased brother's wife?

 

[Litigator22]

(The disposition would then fail or lapse and become a part of the residuary estate. The brother's widow would take nothing from the estate.)

My error! The disposition would indeed be payable to the estate of the deceased child. I overlooked the word "meantime" and posted with the mistaken assumption that the child predeceased the parent. Sorry.

 

[HRZ]

I don't think that is correct application of anti lapse law ...brother as benificary did not predecease Mom the testator ...his share vests with his estate .

 

[not2cleverRed]

Just to clarify: when your mother died, she was survived by her 3 children, you and 2 brothers. All 3 children were named as beneficiaries of the will. Your deceased brother died after your mother died, but before the assets of the estate were liquidated for the purpose of distributing the inheritance among the heirs.

If this is the case, then no, your brother did not predecease his mother, the maker of the will. Lapse, anti-lapses - it all has to do with an heir predeceasing the maker of the will.

Just because the estate took 3 years to distribute anything does not mean the terms of the will took effect 3 years later. I vehemently disagree with Litigator.

Your brother's estate should get his potion of his inheritance, as dictated by the terms of your mother's will. If he had a will, then his will determines how to distribute his estate including his inheritance. If he had no will, then New York intestate law determines how his estate, including his portion of the inheritance, should be divided. His wife should in that case get his entire portion.

Let me put it another way.

If your wishful interpretation of New York's anti-lapse law applied, then anyone could delay the distribution of an estate, in the hopes of depriving another heir their inheritance.

 

[ALawyer]

Just a slight addendum to the above posts: the anti-lapse statue seems irrelevant here as the brother died after the mother passed -- and thus he (or his estate) would inherit the share left to him. (One exception, Wills often include provisions that in order to inherit, the named beneficiary must survive for a set period of time, such as 30 days, after the death of the person making the Will.)

Second, although another poster said about the deceased brother "if he had no will, then New York intestate law determines how his estate, including his portion of the inheritance, should be divided. His wife should in that case get his entire portion." that is not necessarily correct.

If the deceased brother was a resident of a state other than New York, the provisions of the brother's Will and/or the laws of the state of the brother's residence would govern who is to receive the share going to the brother's estate, and even if the brother lived in New York, the beneficiaries of his estate -- depending on whether he had a Will, and what was left to his spouse, also might include the brother's children or others.

 

[pandaman]

Thanks everyone. It makes sense that the order of death is important in the lapse law.