Legal Question in Wills and Trusts in Pennsylvania

If I give my cousin real property (land) in my Will and she passes away, would her husband automatically take her place and inherit the land? Not sure if state law matters, but they live in PA, I live in CA and the land is in AZ.

I was just wondering in case I need to create a successor.

Asked on 7/08/13, 3:44 pm

1 Answer from Attorneys

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Yes, state law matters. It matters where you live at the time you die because your will is going to be interpreted as per state law.

If you say in your will that I leave my property in AZ to my cousin X, then your will should spell out what will happen if X dies before you. Your will should also contain a survival requirement mandating that your beneficiaries must survive you by 90 days in order to take under the will. If they don't then the beneficiary will be treated as dying before you and the property would pass to your alternate beneficiary. So your will should read instead "I leave my AZ land to my cousin X, but if she should die before me, I leave my AZ property to Y" or you can have the AZ property pass as with the residue of your estate.

If your cousin dies before you the land does not automatically pass to your cousin's husband. If you say nothing then the land will pass as per the residue clause (the residue clause is really a catchall) to the residuary beneficiary. If there is no residuary beneficiary, then the land will pass to whomever would be your heir under the intestacy law of the state where you reside at the time of death. In most states, the preference is your spouse, then children or any lineal descendants (grandkids, great grandkids etc.). If you have no spouse or children, then your parents, but if they are dead, then your siblings and if none, nieces/nephews. The process continues going back up the family chain and out. At some point, state law says enough and provides that the property will escheat (go to) the state. To stop this from happening, name alternate beneficiaries. Its unlikely that 2 or 3 of your beneficiaries would all be wiped out.

The only problem is that even if you draft a perfect will, I can envision a scenario whereby your cousin dies after you but satisfies the survivorship requirement. What then? If that happens, then your cousin's estate will inherit the property and the land will pass as per your cousin's will or via the intestacy laws of the state where she lives at the time of her death. This means that your cousin's husband could possibly inherit the land. If this is not what you want, then you need to think of other options.

Since you live at present in CA, you should be directing your question to California estate planning attorneys, not PA ones. You need to have a thorough estate plan in place. Although you don't indicate the value of your assets, you might also want to create a revocable living trust since you own land out of state. With a trust, you could leave your land to the trust and provide that your cousin has the right to use the land and if she dies, then the land will go to some other beneficiary. In that way, you will totally prevent the cousin's husband from getting the land if that is your goal.

Please have your will looked at by a California attorney. In addition to a will or trust, you will need a health care power of attorney, living will/advance medical directive and a financial power of attorney.

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7/08/13, 9:21 pm

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