Estate, Powers and Trusts, § 3-3.4: Consequences of Partly Ineffective Testamentary Dispositions of Property to Two or More Residuary Beneficiaries

It is important that a last will and testament include a residuary clause to dispose of estate property that remains after all other dispositions. However, just like with any disposition in a will, there are a variety of reasons that such a gift might be ineffective. New York law has provisions as to what happens to such property, including the consequences of an ineffective testamentary disposition to two or more residuary beneficiaries. There are a variety of reasons that a testamentary disposition can fail. A failed testamentary disposition can lead to disputes among beneficiaries and heirs during probate. To learn more about the consequences of ineffective testamentary dispositions, contact an experienced New York probate administration attorney at the Law Offices of Stephen Bilkis & Associates.

A residuary estate consists of the property that remains in a decedent’s estate after all bills have been paid and all testamentary gifts distributed. A residuary clause allows the testator to transfer the property that remains in the residuary estate. This often includes money and other property that comes into the estate after the death of the testator or after the will was executed. The residuary estate goes to the person the testator named as the residuary beneficiary. It is important to name at least one successor or alternate residuary beneficiary. If your residuary beneficiary predeceases you, the property will be distributed according to intestate succession rules. Similarly, in the absence of a residuary clause, the property left in your residuary estate passes by intestacy.

As a New York probate administration lawyer will explain, the terms of a residuary clause can be simple or detailed. For example, the testator may provide that the entire residuary estate is to go to one person. Residuary clauses can also be detailed and complex, with specific provision details as to what part of the residuary estate goes to specific residuary beneficiaries. For example, the clause could state that two residuary beneficiaries are to receive one type of residuary property, while other beneficiaries are to receive another type of residuary property. Under the Estate, Powers and Trusts, § 3-3.4- Consequences of partly ineffective testamentary dispositions of property to two or more residuary beneficiaries, if the residuary disposition to two residuary beneficiaries is ineffective, then that disposition passes to the remaining residuary beneficiary. If there is more than one remaining residuary beneficiaries, then it will pass the all of the remaining beneficiaries based on each beneficiary’s interest in the residuary estate.

A testamentary disposition can be ineffective or fail due to a number of reasons. In the case of the residuary estate, a disposition can fail because the residuary beneficiary or beneficiaries predecease the testator. Another reason that a testamentary disposition of the residuary estate can become ineffective is where the beneficiary is also one of the two witnesses to the will. If a witness is also a beneficiary, the gift to the beneficiary will fail, unless there are two other disinterested witnesses.

As a probate administration attorney in New York can explain, if all dispositions of residual property fail, then the property will pass under intestacy rules. Under intestacy rules, your property will go to your legal heirs, which is your next of kin. If you have a surviving spouse and children, under the statute they will receive the residuary disposition. Otherwise, the statute names other blood relatives who would be entitled to receive it in an order of priority.

1. What a testamentary disposition includes: Estates, Powers and Trust, § 3-3.1
2. Competence of attesting witness who is beneficiary;  application to nuncupative will: Estates, Powers and Trust, § 3-3.2
3. Disposition to issue or brothers or sisters of testator not to lapse;  application to class dispositions: Estates, Powers and Trust, § 3-3.3
4. Conditions qualifying dispositions;  conditions against contest;  limitations thereon: Estates, Powers and Trust, § 3-3.5

Whenever a testamentary disposition of property to two or more residuary beneficiaries is ineffective in part, as of the date of the testator's death, and the provisions of 3-3.3 do not apply to such ineffective part of the residuary disposition nor has an alternative disposition thereof been made in the will, such ineffective part shall pass to and vest in the remaining residuary beneficiary or, if there are two or more remaining residuary beneficiaries, in such beneficiaries, ratably, in the proportions that their respective interests in the residuary estate bear to the aggregate of the interests of all remaining beneficiaries in such residuary estate.

When drafting a will, it is importation to make sure it contemplates possible future circumstances. For example, it is important to make provisions for estate property that you may acquire some time in the future. An experienced probate administration lawyer serving New York will make sure that your will does take into consideration possible future circumstances that may result in a disposition becoming ineffective. The attorneys at the Law Offices of Stephen Bilkis & Associates have the experience, skill, and resources to create a will that will meet your needs. Contact us at 800-696-9529 to schedule a free, no obligation consultation regarding your case. We represent clients in the following locations: the Bronx, Brooklyn, Long Island, Staten Island, Manhattan, Nassau County, Queens, Suffolk County and Westchester County.