When you are administering someone’s estate, you might find out that a beneficiary has died. What you do in this case depends on whether the beneficiary died before or after the person whose estate you are administering.
A ‘beneficiary’ means someone who should inherit from someone’s estate after they die.
If the person left a Will, a beneficiary might be specifically named in the Will, or might be eligible to make a Legal Rights claim under Scots Law.
If they did not leave a Will, the laws of intestacy dictate who the beneficiaries are.
The beneficiary died after the person you're Executor for
If a beneficiary was alive on the day the person whose estate you are administering died, but has died since, the beneficiary’s inheritance becomes part of their own estate. This applies whether they were named in a Will, they had a Legal Rights claim, or whether there was no Will and they were legally due to inherit.
You should distribute the inheritance to their Executor or administrator, who then handles it as part of their estate.
The beneficiary died before the person you're Executor for
If a potential beneficiary died before the person whose estate you're administering, what happens depends on whether there was a Will and what type of inheritance was involved.
Beneficiaries named in a Will
If someone named in a Will died before the person who made that Will, check the Will for instructions about what should happen.
There might be a clause specifying where the share goes if a beneficiary dies first. Otherwise, the share falls into the ‘estate residue’ (what’s left over after paying debts and any specific amounts to people).
The Will might have a ‘residue clause’ saying where this residue should go. Otherwise, the share is distributed according to Scottish intestacy laws.
Who inherits by Scottish intestacy laws (no Will)
Estates without a Will
When someone dies without a Will, their estate is distributed according to the laws of intestacy. If someone who would have inherited under these intestacy laws died before the person whose estate you're administering, their children (or other descendants) inherit their share instead.
This example uses a fictional man called Bob.
Bob has 2 childre,n Kate and Sam.
Sam died the year before Bob died.
Bob was divorced, and did not leave a Will.
Under the laws of intestacy, the entire estate goes to Bob's children.
This means Kate gets half of the estate.
If Sam has children, his half of the estate is divided equally between them.
If Sam has no children and no other descendants, his share goes back into the pot (in this case all to Kate).
Legal Rights claims
The same basic rules apply to Legal Rights claims as when there is no Will. If someone with a Legal Rights claim died before the person whose estate you're administering, their descendants can claim their share instead.
For example, if the person who died had a son who died before them, that son's children (the person’s grandchildren) can claim the Legal Rights share the son would have received. This continues down through the generations.
How we can help
We can guide you through the process of distributing an estate when beneficiaries have died.
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