What happens when a testator outlives their dependents?

Estate planning is important to ensure that your wishes will be carried out and your estate will be distributed appropriately after you pass away. Most people who write their last will and testament never consider the possibility that the people they nominate to handle their estate or inherit from them could die first, but unfortunately, this is sometimes the case.

Here is a look at the legal implications of unraveling a last will and testament when the nominated executor or one or more beneficiaries are already deceased.

Executor is deceased

In a situation where the nominated executor of the testator’s last will and testament has passed away before them, an alternative executor will be approached to take on the responsibility. Often, this will be a secondary person named within the will. In cases where nobody is assigned this responsibility, a member of the deceased’s family can apply to the court of New Mexico to assume the role and begin probate proceedings [1].

If no alternative executor is named in the will and no family members apply to assume the role, the court may need to appoint a new executor to perform this duty. This is a labor-intensive role and one that must be performed with the utmost care, so some families may choose to appoint a paid expert to perform this duty for them.

If the court nominates an executor, also known as a personal representative, this individual will be entitled to petition the court for financial compensation, provided that the amount requested is deemed reasonable based on the individual’s experience and the complexity of the estate. 

Beneficiary or beneficiaries are deceased

The distribution of assets will be affected if one or more beneficiaries pass away before the testator. The will should state how assets should be distributed in this situation. If it does not, it is usually reasonable to assume that New Mexico intestate succession laws will be enacted.

In this scenario, one of two things could happen. Either a greater proportion of assets will be distributed to the testator’s remaining heirs or the offspring of the deceased will inherit on their behalf [2]. The executor will usually determine the most appropriate outcome and may seek legal advice from an experienced practitioner of family law in Albuquerque to support their decision-making process.

Avoiding uncertainties in estate planning

The easiest way to avoid a situation occurring in which a testator outlives their nominated executor or beneficiaries is to regularly review and update estate planning documents. Not only does this ensure that an individual’s last will and testament always reflects their wishes but also that it aligns with their personal circumstances as they change over time.

Proactive estate planning ensures that an individual’s wishes can be carried out after their death in an expedient manner, with costs and timescales minimized. By ensuring that their estate is in good order, they can not only simplify the distribution of their estate after their death but also guard against any future mental incapacity and ensure that none of their assets are misallocated or left unclaimed.

A sensible measure to take when an estate planning is to nominate at least two, and up to four, executors in your last will and testament. If you do not plan to regularly revisit your will, this measure increases the likelihood that at least one nominated executor will outlive you and be able to handle your affairs in the manner that you desire. 

You may also specify how you wish for your assets to be distributed in the event that a beneficiary passes away before you. This could include splitting their share of the estate between their heirs, or dividing their share among all surviving nominated dependents. You may revoke any decisions that you make at any point, and it is important that this process is conducted with clarity as any inconsistencies could be presumed to be supplementary to an earlier will rather than replacing it [3].

For this reason, legal advice should be sought when writing, updating, changing or revoking a will or any element of it to ensure that your wishes are clearly defined and actionable upon your death. 

In conclusion, estate planning is all about clarity. To avoid a situation from occurring in which a testator outlives their nominated executor or beneficiaries, estate planning documentation such as living trusts and last will and testaments should be revisited whenever an individual’s personal circumstances materially change. This includes when they get married, divorced, have children or when a member of their family passes away. 

At the Law Office of Dorene A. Kuffer, we can help you with all aspects of estate planning. Our caring and compassionate team will guide you through this process to ensure that your loved ones will be cared for in accordance with your wishes after you are no longer able to do so yourself.


[1] https://law.justia.com/codes/new-mexico/2018/chapter-45/article-3/section-45-3-301/
[2] https://law.justia.com/codes/new-mexico/2021/chapter-45/article-2/part-1/subpart-1/section-45-2-101/
[3] https://law.justia.com/codes/new-mexico/2021/chapter-45/article-2/part-5/section-45-2-507/