Part of establishing an estate plan is determining to whom your estate will be distributed. More often than not, when asked how his or her estate is to be distributed, the person whose Will we are preparing (the testator) has an idea of who he or she would like to name as the beneficiary/beneficiaries of his or her estate. He or she has given this some thought and is prepared to answer this question with the name(s) of family, friends and/or one or more charities he or she supports. 

After taking note of the person’s instructions, the question that follows is – what happens if an individual you have named is not living on the relevant date?  This is a question people often don’t anticipate. 

When working with your estates lawyer to prepare your estate plan, you will likely be asked a number of “what if” questions. A number of these will be tied to what happens if certain people aren’t living at the relevant time.  This is because, when you engage in the process of having a Will prepared, you are taking advantage of the opportunity to have a say in how your estate is distributed.  You are taking steps to avoid your estate being subject to the laws of intestacy. It therefore makes sense to consider what you would like to happen if one or more of the individuals you name as beneficiary predecease you or predecease the date he or she would have been entitled to receive a gift under your Will.

“How would you like your estate to be distributed if none of your named beneficiaries are alive at the relevant time?” Lawyers have different names for the provisions in your Will arising from the answer to this question – for example, some call them family disaster clauses, others call them common disaster clauses.  Regardless of the name you give such provisions, they are an important part of a well thought out estate plan.

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