What Happens When a Beneficiary Dies Before Receiving Inheritance in Qld

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When a beneficiary dies before receiving their inheritance in Queensland (QLD), Australia, the outcome depends on several factors, including the terms of the will, the type of inheritance, and the timing of the beneficiary’s death relative to the will maker’s death. 

Here is a general overview of what might happen in such situations:

  1. Per Stirpes vs. Per Capita: The distribution of the inheritance depends on whether the will specifies distribution per stirpes or per capita. Per stirpes means the deceased beneficiary’s share will pass to their descendants. Per capita distribution means the inheritance is divided equally among surviving named beneficiaries or those in the same category (e.g., all grandchildren).
  2. Survivorship Clause: Many wills include a survivorship clause, requiring beneficiaries to survive the testator by a certain period (often 30 days) to inherit. If the beneficiary dies within this period, their inheritance would typically be redistributed according to the will’s residual clause or follow intestacy laws if no alternatives are specified.
  3. Intestacy Laws: If the will does not address what happens if a beneficiary predeceases the testator, or if there is no will, the Queensland intestacy laws come into play. These laws determine how the estate is distributed, usually directing assets to the spouse or closest living relatives of the deceased beneficiary.
  4. Specific Gifts vs. Residual Estate: If the deceased beneficiary was meant to receive a specific gift, and there are no instructions in the will for this scenario, the gift may fall into the residue of the estate and be distributed accordingly. If they were to inherit a portion of the residue, that portion typically would be reallocated among the surviving residuary beneficiaries.
  5. Trusts: If the inheritance was to be placed in a trust, the terms of the trust would dictate what happens. Trusts often have provisions for alternate beneficiaries if the primary beneficiary cannot inherit.
  6. Minor Beneficiaries: If the deceased beneficiary is a minor, the situation can be more complex, especially if arrangements like a testamentary trust were made in their favor.

In all instances, consulting with an expert will lawyer familiar with Queensland’s succession laws is essential to understand the specific implications of a situation.

The outcome can vary widely depending on the details of the will, the nature of the assets, and the family circumstances.

What if the beneficiary dies after the decedent but before settling the estate?

If a beneficiary dies after the decedent but before the estate is settled in Australia, here’s what typically happens:

  1. The Gift Passes to the Beneficiary’s Estate:
  • When a beneficiary survives the deceased, their entitlement to the inheritance is usually established. Even if they haven’t physically received the assets, the gift becomes part of their estate.
  • This means the deceased beneficiary’s estate will handle the inheritance.
  1. Distribution According to the Deceased Beneficiary’s Will (or Intestacy):
  • Will: If the deceased beneficiary has a valid will, their inheritance will be distributed according to those instructions.
  • Intestacy: If the deceased beneficiary died without a will, intestacy laws will determine who receives their assets (including the inheritance). Priority generally goes to the deceased beneficiary’s close family members in a similar order as outlined for the original deceased person.


Sarah’s will leaves her house to her brother, Mark. Mark survives Sarah by two months but dies before the administration of Sarah’s estate is complete and the house has been transferred to his name.

  • Mark’s Estate: The right to the house becomes part of Mark’s estate.
  • Distribution:
    • If Mark has a will, the house will go to his chosen beneficiaries.
    • If Mark died without a will, intestacy laws will dictate how his estate, including the house, is distributed.

Important Points

  • Time Period: The length of time from the deceased’s death to the beneficiary’s death may influence legal interpretations in complex cases.
  • State and Territory Laws: There may be slight laws and procedures variations between Australian states and territories.
  • Executor/Administrator Responsibilities: The executor or administrator of the original estate must distribute the deceased beneficiary’s share to their estate’s proper representatives (executor or administrator of the deceased beneficiary’s estate).

What happens to the inheritance if there’s no survival clause and the beneficiary dies shortly after the decedent?

When there’s no survival clause and the beneficiary dies shortly after the decedent in Australia, the outcome depends on a few factors:

  1. State or Territory Laws: The laws of the relevant state or territory play a significant role. Many have “survival rules” which usually require a beneficiary to survive the deceased (testator) by a specified period, often 30 days, to inherit. Here’s what can happen:
    • Beneficiary Survives the Required Period: If the beneficiary outlives the deceased by the period required by state/territory law, the inheritance passes to their estate, as explained previously.
    • Beneficiary Does NOT Survive the Required Period: If the survival period is not met, the inheritance generally fails and may be treated as follows:
      • Residuary Clause: If the original will has a residuary clause (dealing with the rest of the estate), the failed inheritance likely falls into the residue and is distributed to the residuary beneficiaries.
      • Intestacy: If there’s no valid will, or the will doesn’t cover the failed gift, intestacy laws dictate who receives the inheritance, prioritising close relatives of the original deceased.
  2. The Will’s Specific Provisions: Even without a survival clause, the deceased’s will might have other provisions that influence what happens to the gift:
    • Substitutionary Gifts: If the will designates an alternate beneficiary should the original one predecease the testator, then the substitute inherits.
    • Lapsed Gifts: Specific rules about lapsed gifts (failed gifts) might be addressed in the will, clarifying the testator’s intentions.


Michael’s will leaves $50,000 to his friend Jane but has no survival clause. Jane tragically dies in a car accident two weeks after Michael.

  • Survival Period: If the relevant jurisdiction has a 30-day survival rule, Jane’s inheritance fails.
  • Possible Outcomes:
    • Residuary Clause: The $50,000 would likely become part of the residuary estate and go to Michael’s designated residuary beneficiaries.
    • No Will/Incomplete Coverage: If Michael had no will or the gift is not addressed, the $50,000 could be distributed according to intestacy laws.

Beneficiary Husband Died Before Receiving Inheritance

A client approached Walker Pender, troubled by her inheritance situation. Her husband had recently passed away, just a month after his sister, who named him a beneficiary of her estate.

The client was unclear whether she and her children could now claim these inherited assets. Our legal team meticulously reviewed the sister’s will, focusing on any survivorship clauses and relevant legislative provisions, such as anti-lapse statutes, that might impact the inheritance’s distribution.

Given the circumstances, we assessed whether the client and her children could inherit directly. Through careful legal analysis and applying jurisdiction-specific inheritance laws, we provided the client with a comprehensive understanding of her rights and potential entitlements.

We guided her through the next steps to secure her family’s inheritance ensuring her peace of mind during this complex legal process.

What Happens When a Beneficiary Dies Before Receiving Inheritance?

Are you navigating the complexities of inheritance when a beneficiary dies shortly after the decedent? Let Walker Pender guide you through the legal maze to ensure your rights and interests are protected.

Our expert team understands the intricacies of estate law and is committed to delivering clear, compassionate advice during this challenging time. Don’t face uncertainty alone—contact Walker Pender today to secure your rightful inheritance and peace of mind for your future.

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