When Happens to a Gift in a Will When the Heir Dies?

Full question:

My father left two pieces of real property to me in his will, and assigned me as the executor of his estate. One home was left to me only, the second home was left to myself and my only sibling. Before the probate passed the ownership of the home left to me and my sibling, my sibling passed away, leaving apprx. $18,500 in debts to medical institutions, such institutions had normally either submitted his bills to Title 19 or the Creek Nation, as we are Creek Natives and have CDIB cards. But for some reason these bills were not passed by the medical institution to either Title 19 or the Creek Nation as they had several times. Therefore a collection agency is attempting to file a lien against the real property that had never been assigned to my sibling, which I alone had put tens of thousands in repairing problems, cleaning, painting, etc., and this lien will effect a future sale and/or my financial picture. Please tell me if my sibling who was deceased before ever owning the property should be an heir to the property and therefore the lien the collectors want to put on the property would exist. I am very upset with my current attorneys, who vascillate about the law and simply don't seem to know exactly what should be done, although I hired them to do the probate and protect my interests. Thank you for your expedited answer!

• Category: Wills and Estates
• Subcategory: Probate
• Date: 04/07/2025
• State: Oklahoma

Answer:

The answer would partly depend on an Oklahoma interpretation of when the interest in property vests in probate, at the death of the deceased or the formal transfer of the deed. Under Oklahoma law, a gift in a will is presumed to vest at death. The answer may depend on the terms of the will for lapsed gifts and whether it contained a residuary clause. The answer may also depend in part on whether the sibling left a will and its terms.

Antilapse statutes do away with the common law practice of holding that gifts made in a will to an heir who predeceases the testator (maker of the will) lapse upon the death of the specified recipient. Most U.S. jurisdictions have enacted antilapse statutes, and many apply only to relatives of the testator. The purpose of enacting such statutes was to change the harsh results of the common law rule, which often operated to disinherit granchildren when the parents predeceased the testator/grandparent. Antilapse statutes may also apply to trusts.

A requirement in the will that the initial transferee survive until a future time that is related to the probate of the transferor’s will or administration of the estate of the transferor generally will override the application of the antilapse statute.

The answer will be a matter of determination for the court based on all the facts and documents involved. We are prohibited from giving a legal opinion, as this service provides information of a general legal nature. If you are unhappy with your representation, you are free to terminate the attorney’s services and hire another.

Please see the following OK statutes:

R.L.1910, § 8404.
§84175. Rights presumed to vest on testator's death.
Testamentary dispositions, including devises and bequests to a person on attaining majority, are presumed to vest at the testator's death. R.L. 1910, Sec. 8405.

R.L.1910, § 8405.
§84176. Rights divested, when.
A testamentary disposition, when vested, cannot be divested unless upon the occurrence of the precise contingency prescribed by the testator for that purpose. R.L. 1910, Sec. 8406.

R.L.1910, § 8406.
§84177. Death of devisee or legatee causes failure.
If a devisee or legatee dies during the lifetime of the testator, the testamentary disposition to him fails, unless an intention appears to substitute some other in his place, except as provided in Section 8922. R.L. 1901, Sec. 8407.

R.L.1910, § 8322.
§847. Title and possession Representative may sell property devised.
In a specific devise or legacy, the title passes by the will, but possession can only be obtained from the personal representative; and he may be authorized by the district court to sell the property devised or bequeathed, in the cases herein provided.

R.L.1910, § 8323.
§848. Claim under heir against devisee Probate proceedings.
The rights of a purchaser or encumbrancer of real property in good faith, and for value, derived from any person claiming the same by succession, are not impaired by any devise made by the decedent from whom succession is claimed, unless the instrument containing such devise has been duly admitted to probate by a court of this state having jurisdiction to administer upon the estate of the decedent within two (2) years after the death of the decedent, or unless within one (1) year after the death of the decedent a petition to admit said will to probate has been duly filed in the court of this state having jurisdiction to admit said will to probate and the proceedings have been pursued by the petitioner with diligence.