Legal Definitions - executory remainder

An executory remainder describes a future interest in property that is not yet certain to take effect. Its eventual ownership is uncertain because it depends on either a specific event happening first (known as a "condition precedent") or because the exact individuals who will eventually receive the property are not yet identifiable (they are "unascertainable persons"), or both.

Essentially, it's a right to property that is waiting for certain conditions to be met or for the future owner to become clear before it can fully vest or become a definite, guaranteed interest.

• Example 1: Condition Precedent

  A wealthy aunt creates a will stating that her valuable art collection will go to her nephew, David, only if he successfully completes law school and passes the bar exam before his 30th birthday. David is currently 22 and just starting law school.

  This is an executory remainder because David's right to the art collection is entirely dependent on a future event (graduating law school and passing the bar exam) occurring within a specific timeframe. If he fails to meet this condition, he will not receive the collection, making his interest uncertain until the condition is fulfilled or the deadline passes.

• Example 2: Unascertainable Persons

  A trust is established by a grandparent, stipulating that a family farm will be passed down to "the first of my grandchildren to establish a successful agricultural business." At the time the trust is created, the grandparent has two young grandchildren, neither of whom is involved in agriculture, and there is a possibility of more grandchildren being born in the future.

  This situation illustrates an executory remainder because the specific person who will ultimately inherit the farm is currently unascertainable. It depends on which grandchild, from the current or future generation, fulfills the specified criterion first. Until that happens, the identity of the future owner remains unknown.

• Example 3: Both Condition Precedent and Unascertainable Persons

  A will specifies that a significant sum of money will be distributed to "whichever of my nieces' children first publishes a novel that wins a national literary award." The testator has two nieces, each with two young children, none of whom have yet shown an interest in writing, and certainly none have published award-winning novels.

  Here, the interest in the money is an executory remainder because it involves both unascertainable persons (which child, if any, will achieve this feat?) and a condition precedent (publishing an award-winning novel). The identity of the beneficiary and the fulfillment of the condition are both uncertain at the time the will takes effect.