How Are Items Listed in a Will Treated When They Have Been Sold Prior to the Maker’s Death?

Sometimes items listed for distribution within a Will are designated to specific beneficiaries, but are sold, lost or given away prior to the death of the maker of the Will. And in some cases, those items were to be distributed specifically to a named beneficiary, to the exclusion of others.

But what is the process for the distribution of assets if one of those items, like a house, was to be split amongst all the children while cash was designated only to a specific child — but the house was sold months in advance of the death of the maker of the Will?

Further, if the named beneficiary has died, what rights do the children of the named beneficiary have to the distribution?
Most Wills have provisions dealing with the death of any of the named beneficiaries. For instance, many Wills will contain language that states, “I leave my house to Charles and Carolyn, equally, share and share alike, provided that they survive me.  In the event that any of my children should predecease me, then the share that such deceased child would have received if living, I give, devise and bequeath to the lineal descendants of such deceased child, per stirpes and not per capita.”

What this phrasing means is that the children of the deceased’s own child will receive the property that the deceased’s child would have received if still living.

So what if all of the children were to share in the disbursement of a house, but the house has been sold previously? Quite simply, that asset is no longer subject to transfer by the Will and the directions in the Will are simply ignored.

Further, if all of the children were to share in the house but only one child was to receive cash from the Will, the “ignoring” of the house doesn’t change the specifically-listed distribution of the cash — it all belongs to the named child, even though there is no house for the other children to share. If the named child for the cash has died and if the Will contains language similar to that above, the named child’s children/descendants would receive that cash.

If the language listed above was NOT contained in the Will, state law concerning descent and distribution will likely determine how the cash is to divided among surviving heirs, typically through Probate Court.

So a careful reading of the Will and knowledge of state law is required to make the determination of distribution, which the Probate Court most likely will do. If you have questions and need legal advice to protect any interests in this Will, you can find a qualified local attorney for FREE at Standard Legal’s Attorney Find page.