The Issue of Simultaneous Deaths in Wills

What happens if The person who wrote the will and the benefactor of the will both die?

For any beneficiary, for any person, to take from a will they must outlive the testator the decedent aka, the person who made the will. When a beneficiary that was named in the will and was supposed to take passes away before the testator (or within 120 hours of the testator under the Uniform Probate Code, which regulates wills in some states) the gift to the beneficiary is removed. The only way the item would not be removed and thus go to the beneficiary’s heirs would be if  there was a statute established by the state. If the state cannot determine whether the beneficiary or the decedent perished first each decedent is disposed of as if he had survived the other. For instance, if a husband and wife died in a car accident, but the state could not figure out which died first and both had placed each other in their wills and had no children, then the state would take each as surviving the other. These issues of course are directly related to simultaneous deaths in wills.

Estate Planning: Different Types of Simultaneous Deaths in Wills.

In addition, the testator is usually viewed as always surviving the beneficiary when it comes to deaths that occur at the same time in wills. So, the heir is always assumed predeceased when it comes to an intestate distribution, and in regards to life insurance policies it is usually viewed as though the insured survived and the beneficiary predeceased. Of course all these things only occur if there is a simultaneous death amongst the decedent and the beneficiary.  In joint tenancy’s when both owners of the joint tenancy with the right of survivorship (both owners have an equal share to a whole) ½ of the property is viewed as though Tenant A survived and ½ of the property is viewed as though tenant B survived. Such deaths prevent the operation of the right of survivorship.  For those of you who were not aware, generally under a joint tenancy with a right of survivorship means the last tenant alive gets the property.

Avoiding Simultaneous Deaths in Wills Issues

To avoid most of these simultaneous deaths in wills problems or other issues involved n the probate estate, attorneys can draft clauses into wills that specifically define who will be considered a survivor in the event of a simultaneous death scenario. This will also reduce expenses involved with the division of property. Problems can be further reduced by selecting a different beneficiary for important policies like retirement policies and insurance accounts. Basically, this different beneficiary would be like a back up to any main beneficiary. We highly suggest that you discuss all possible scenarios with an attorney when you are drafting a will and even discuss with your attorney a “simultaneous deaths in wills” situation. Although you can create your own will without an attorney, talking with an attorney will assist you in making a secure and valid will when random unforeseeable events occur down the road.

If you want information on how to create a will check out our article on how to do so.

If you want information on how to revoke or modify a will we have an article on that as well.

CNBC wrote an article this past January indicating the importance of a clause regarding simultaneous deaths in wills. You can check their article out here.

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