Massachusetts General Laws ch. 190B sec. 2-707 – Survivorship with respect to future interests under terms of trust; substitute takers
Section 2–707. [Survivorship with respect to future interests under terms of trust; substitute takers.]
Terms Used In Massachusetts General Laws ch. 190B sec. 2-707
- Beneficiary: A person who is entitled to receive the benefits or proceeds of a will, trust, insurance policy, retirement plan, annuity, or other contract. Source: OCC
- Codicil: An addition, change, or supplement to a will executed with the same formalities required for the will itself.
- Devise: To gift property by will.
- Gift: A voluntary transfer or conveyance of property without consideration, or for less than full and adequate consideration based on fair market value.
(a) If an instrument is silent on the requirement of survivorship, a future interest under the terms of a trust shall be contingent on the beneficiary surviving the distribution date. In that case, if a beneficiary of a future interest under the terms of a trust fails to survive the distribution date, the following shall apply:
(1) If the future interest is not in the form of a class gift and the deceased beneficiary leaves surviving descendants, a substitute gift shall be created in the beneficiary’s surviving descendants. Such descendants shall take per capita at each generation the property to which the beneficiary would have been entitled had the beneficiary survived the distribution date.
(2) If the future interest is in the form of a class gift, other than a future interest to ”issue”, ”descendants”, ”heirs of the body”, ”heirs”, ”next of kin”, ”relatives” or ”family”, or a class described by language of similar import, a substitute gift shall be created in the deceased beneficiary or beneficiaries’ surviving descendants. The property to which the beneficiaries would have been entitled had all of the beneficiaries survived the distribution date shall pass to the surviving beneficiaries and the surviving descendants of the deceased beneficiaries. Each surviving beneficiary shall take the share to which the surviving beneficiary would have been entitled had the deceased beneficiaries survived the distribution date. Each deceased beneficiary’s surviving descendants who are substituted for the deceased beneficiary take per capita at each generation the share to which the deceased beneficiary would have been entitled had the deceased beneficiary survived the distribution date. For the purposes of this paragraph, ”deceased beneficiary” shall mean a class member who failed to survive the distribution date and left 1 or more surviving descendants.
(b) If, after the application of subsection (a), there is no surviving taker, the property shall pass in the following order:
(1) if the trust was created in a nonresiduary devise in the transferor’s will or in a codicil to the transferor’s will, the property shall pass under the residuary clause in the transferor’s will. For purposes of this section, a residuary clause shall be treated as creating a future interest under the terms of a trust;
(2) if no taker is produced by the application of clause (1), the property shall pass to the transferor’s heirs under section 2–711.