THE LIVING TRUST NETWORK - ABOUT SURVIVORSHIP CLAUSES

Most Testators make gifts under their Wills with the intention that the designated beneficiaries will survive them.

Because that won't always happen, it is always prudent for a Testator to carefully consider the alternatives available if a designated beneficiary does not survive.

One of the options is simply to allow the gift to be completed, in which case the gift will go to the designated beneficiary's estate and his or her beneficiaries will end up with the property. If that option is acceptable, then the gift to the designated beneficiary can be stated as follows:

"I give and bequeath the sum of $5,000.00 to my sister, Harriet C. Doe, of __________, __________.

Another option is to require the designated beneficiaries to actually survive the Testator. If a designated beneficiary does not survive the Testator, then the gift will lapse and either an alternate beneficiary can be designated under the Will or the gift can be disposed of as part of the Testator's residuary estate. Here is how these alternatives might be stated:

"I give and bequesth the sum of $5,000.00 to my sister, Harriet C. Doe, of __________, __________, if she survives me. If my sister, Harriet C. Doe, does not survive me, then I give and bequeath the sum of $5,000.00 to her son, Mark T. Doe, of __________, __________, if he survives me. If neither the said Harriet C. Doe, nor the said Mark T. Doe survives me, then the same shall become a part of my residuary estate, to be distributed as hereinafter provided in Article ____ of this Will.

Whenever a gift to a designated beneficiary is conditioned upon surviving the Testator, it is prudent to provide some mechanism in the Will to determine if a beneficiary actually survived the Testator. For example, if a husband and wife are killed in an airplane crash, it is impossible to determine who survived whom. For that reason, it may be advisable to include a presumption in the Will; i.e., if it can't be determined who survived whom, then it will be presumed that __________ survived __________. This presumption is called a "simultaneous death presumption."

On the other hand, most Testators don't want their property to go to a designated beneficiary if the designated beneficiary doesn't survive for a meaningful period of time after the Testator's death. In that case, the property will just pass to someone of the designated beneficiary's choosing. Most Testators would rather have the property go to someone of their own choosing.

It is for these reasons that it is important to include survivorship presumptions in a Will. For non-spouse beneficiaries, the normal practice is to state that a designated beneficiary must survive the Testator by a period of from thirty (30) to sixty (60) days. If a designated beneficiary does not survive the Testator for that period of time, then the designated beneficiary is presumed not to have survived the Testator and, accordingly, the gift lapses. The Testator can provide for an alternate beneficiary or simply have that property disposed of as part of the residuary estate. The Simple Will contains such a provision.

For spousal beneficiaries, a thirty (30) to sixty (60) survival period is satisfactory as well, as long as the overall estate is not large enough to be concerned with federal estate taxes. In that case, the only consideration is the ultimate dispostion of the property. On the other hand, if federal estate taxes are a consideration, then a simultanious death presumption is probably necessary in order to insure that no estate taxes are payable on the Testator's death.

One final point - many pour-over Wills do not make any gifts of property to anyone other than the trustee of the Testator's revocable living trust. In that case, it may not be necessary to include any survivorship provisions in the Will. However, prudence dictates that it is always better to be safe than sorry, so be sure to include a survivorship presumption in your Will even though it probably won't be used.

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