Virginia Beach, VA asked in Probate for Georgia

Q: How is Georgia's anti-lapse statute implemented - for sons of named beneficiary who predeceased testator?

Testator named seven (7) siblings to receive equal shares of the remainder (major) portion of his estate.

One (1) of the siblings -- father of two adult sons -- predeceased the testator.

I'm aware that Georgia has an anti-lapse statute for this situation -- which provides for the beneficiary's 'descendants' to receive the 'share' of the estate that their father would have received.

However, neither the executrix nor her attorney have affirmatively communicated with the beneficiary's sons to inform them that they are legally entitled to receive their father's share of the estate.

In fact, initially, both the attorney and the executrix seemed to think that the deceased beneficiary's share would 'roll over' to the remaining six (6) beneficiaries.

I am one of the beneficiaries (sister of the deceased beneficiary -- and aunt to his two sons).

Assuming I'm right, what steps should be taken to implement the anti-lapse statute?

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1 Lawyer Answer
John W. Chambers Jr
John W. Chambers Jr
Answered
  • Probate Lawyer
  • Atlanta, GA
  • Licensed in Georgia

A: "If a beneficiary is dead when the will is executed or otherwise dies before the testator, but has any descendants living at the death of the testator, the testamentary gift, if absolute and without remainder or limitation, shall not lapse but shall vest in the descendants of the beneficiary in the same proportions as if inherited directly from the deceased beneficiary under the intestacy laws of this state." O.C.G.A. Sec. 53-4-62 (a). Whether Georgia's anti-lapse statute applies depends on how the will is written. An interested person should consult with a probate attorney concerning this matter. An attorney would to review the provisions of the will to advise a person whether the statute would apply. If the testamentary gift is not absolute and without remainder or limitation, then the gift would lapse.

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