When someone writes a will, their main goal is simple: To make sure their property goes to the right people. However, ensuring that goal becomes a reality in Texas requires understanding how to identify a primary beneficiary vs. a contingent beneficiary and how they work together. Without clear designations, assets can fall into probate or be distributed according to intestate succession rules instead of the wishes of the will’s creator (the testator).
This guide breaks down primary and contingent beneficiaries and shows what happens when a will isn’t clear or careful about who should inherit. At Massingill, we draft wills and handle probates involving contingent beneficiaries, helping to ensure your rights are protected. Our legal team has extensive experience in estate planning and countless satisfied clients.
What Makes a Will Valid in Texas?
Making the right plans for a primary beneficiary vs. a contingent beneficiary starts with drafting an enforceable will. In Texas, a legally valid will must meet the following key requirements:
- Age and capacity. The testator must be of sound mind and at least 18, married, or a member of the military at the time of writing.
- Written and signed. The will must be in writing and signed by the testator.
- Witnesses. In general, at least two witnesses who are 14 or older must sign the document in front of the testator.
When the testator meets these conditions, their will is enforceable. If the document is invalid, the court decides who inherits assets according to state intestacy law instead of the testator’s wishes.
What Happens If a Devise in a Will Fails?
A devise is a gift given in a will. Sometimes, that gift fails. For example, if a person leaves their jewelry to their friend but their friend dies before them, that devise fails.
When a devise fails, Texas estate law explains what happens next:
- When the beneficiary is a descendant of the testator’s parents (e.g., a sibling, child, niece, or nephew) and they leave surviving descendants, the gift passes to those descendants instead of failing; or
- When there are no surviving descendants, the gift may be distributed according to any residuary clause in the will or the state’s intestate succession rules.
A contingent beneficiary can be a great backup plan to keep a gift from failing.
What Is the Difference Between a Primary Beneficiary and a Contingent Beneficiary?
Although primary and contingent beneficiaries are often used in estate planning, many people misunderstand their meanings and differences.
The primary beneficiary is the testator’s first choice for receiving property after the testator passes, meaning they could be a spouse, child, friend, or organization. A contingent beneficiary is next in line for receiving a gift if the primary beneficiary or their descendants can’t.
A will can protect a testator’s legacy, and choosing primary and contingent beneficiaries can add extra layers to that protection.
Why Primary and Contingent Beneficiaries Are Important
Primary beneficiaries help ensure a testator’s first choice receives an inheritance. However, if a primary beneficiary dies before the testator or they don’t survive for at least 120 hours after the testator dies, their inheritance fails. Fortunately, if the testator names contingent beneficiaries in their will, a contingent beneficiary who survives a primary beneficiary by at least 120 hours can receive the inheritance.
Life can change in an instant, and your estate plan should be ready to handle anything. Our experienced attorneys at Massingill can review and update a testator’s will to help ensure that their beneficiaries continue to reflect their wishes under multiple circumstances.
How Many Beneficiaries Can You Have?
In general, a testator can have as many beneficiaries as they want. However, adding an extremely large number of beneficiaries could complicate or lengthen the probate process.
There is an art to striking a balance between choosing enough beneficiaries for a will’s contingency plan and keeping the terms simple enough for a smooth probate. We help clients find this balance and peace of mind.
Putting It All Together
When comparing a primary beneficiary vs. a contingent beneficiary, a testator can think about their beneficiaries as a football team. The primary beneficiary is the first-string player the coach (testator) hopes wins the game and takes home the trophy. But sometimes, first-string players get injured, are ejected from the game, or cannot come to the game at all. Contingent beneficiaries are the coach’s second-string team to fill in when a primary beneficiary can’t play. Every good football team should have backup players, and so should estate plans.
A thoughtful estate plan includes:
- A valid and clearly written will,
- Properly designated primary and contingent beneficiaries, and
- Regular updates as relationships evolve in the testator’s life.
At Massingill, our experienced estate planning attorneys help clients build legally sound, flexible, and easy-to-understand plans. Whether a client is drafting their first will or updating an existing one, we can help protect their loved ones and preserve their wishes.
We Can Keep Your Estate Plan Ready
Choosing your beneficiaries isn’t just about dividing assets. It’s about feeling secure about your loved ones’ well-being when you can’t be there for them. Knowing exactly who will receive your gifts helps ensure your legacy is honored.
If you need an estate plan or want to know more about choosing the right beneficiaries, reach out to our team at Massingill. Our top-rated and compassionate estate planning attorneys can help you create or update your estate plan so that every detail aligns with Texas law and your goals for the people you love most. Contact us online or call us today to schedule a confidential consultation.
Resources:
- Who may execute will, Texas Estates Code § 251.001 (2017), link.
- Written, signed, and attested, Texas Estates Code § 251.001 (2017), link.
- Disposition of property to certain devisees who predecease testator, Texas Estates Code § 255.153 (2014), link.
Failure of devise; effect on residuary estate, Texas Estates Code § 255.152 (2019), link.
Joshua Massingill
Joshua Massingill is an attorney practicing in Austin, Texas. He serves on the Texas State Bar’s Law Practice Management Committee, the Leander Educational Excellence Foundation (LEEF) Board of Directors, and the Success-Werx Board of Advisors. He mentors young entrepreneurs in Leander ISD’s INCubatorEDU program and is active in his church.
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