It’s fairly common for some beneficiaries named in a will to never receive the funds or gifts left to them. One simple example involves a testator (person who creates a will) who decides after leaving specific property to a relative in a will to simply give the item away or sell it long before he or she dies.

Situations That Can Play a Role in Cancelling Gifts Made under a Will

1. Divorce. Surprisingly, many ex- spouses fail to create new wills until long after their divorces are final. Although courts once struggled with this issue back when divorce was less common, today many states have changed their laws to directly address this problem.

In general, most states have passed statutes which declare that while your ex-spouse may have originally wanted you to inherit various items while you were still married, all such transfers are now considered void following your divorce.

2. Estates Smaller Than Expected. Some testators overestimate the value of their final estates at the time they create their wills. This frequently happens when people create wills when quite young and then fail to periodically update them, changing gifts as required by new circumstances. Due to the recent recession, many testators may have made large monetary gifts that can no longer be bequeathed to certain beneficiaries since the estates’ values having greatly declined. Also, last medical expenses and estate debts (and taxes) can further reduce or eliminate what was originally promised to a beneficiary.

3. Living in a Community Property State. Although Georgia is not a community property state, residents of states that are cannot try to circumvent state statutes which make specific provisions for spouses separate and apart from what’s stated in a will. In other words, in a community property state like Texas, a testator cannot successfully cut his or her spouse out of a will by simply giving everything to another relative or unrelated friend;

4. When a Will Itself is Void. Obviously, no one can inherit under a will that was never been properly executed. However, courts may still try to interpret some wills when only minor requirements have not been met;

5. When A Gift Causa Mortis Has Been Made. Although a testator may have originally named a beneficiary to receive a specific item, that may change if a gift causa mortis is later made. The following scenario explains how this can occur.

Testator leaves his expensive coin collection to his Nephew B. However, just before undergoing brain surgery, Testator tells everyone with him that his Niece A is being given that same collection if he does not survive the surgery. As it turns out, the testator dies during the operation. Under such circumstances, since the testator was speaking while under immediate threat of death, his newest decision will result in Niece A receiving the coin collection.

While these are just some of the circumstances that can result in a beneficiary failing to receive an gift made under a will, they serve to illustrate that unusual events can supersede what’s in a written will.

If you’d like to learn more about this or any area of estate planning, please contact the Law Offices of Shane Smith at (678) 788-7144 or newcase@shanesmithlaw.com to arrange your “estate planning for life” consultation.