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Faizan
When you draft a will, it is easy to assume that beneficiaries substantially younger than yourself will outlive you, but life provides no guarantees. If an inheritance set out in your will fails because the beneficiary predeceases you, California's anti-lapse statute, can help determine who inherits that property.
If a Beneficiary Dies before You
The person making a will is termed the testator. An asset you leave to a beneficiary under your will is termed a devise. But to collect the devise, or inheritance, that person must be alive at the time the will becomes effective -- at the moment of your death. When one of your beneficiaries dies before you, the devise to that person is said to fail or lapse. The question of what happens to that lapsed devise is answered in California by the probate court applying state law.
Unintended Results
In some states, a lapsed devise passes to the person named to inherit the remainder of the estate after all individual gifts to others are disbursed. This may or may not be what you intended. For example, if you leave a small sum to your housekeeper who predeceases you, it may make sense for the devise to pass instead to your daughter, who you named to be the residual beneficiary of the estate. However, if you leave your estate in equal shares to your two daughters with your second wife named as the residual beneficiary, the death of one daughter before the will is effective means that her share passes to your second wife, not to your daughter's children, your grandchildren.
California's Anti-Lapse Statute
California addresses an often unintended outcome with its anti-lapse statute. The statute provides that a lapsed devise passes to the direct, lineal descendants of the deceased beneficiary if the beneficiary was a blood relative of the testator or his spouse. Under this application, a lapsed devise to a deceased son passes to his children or grandchildren, while a lapsed gift to a deceased friend passes to the residual beneficiary of the will, if any. If no residual beneficiary is named in the will, the lapsed inheritance passes to close blood relatives under California's intestate succession laws.
Testator's Wishes Control
In California, by inserting alternative language in his will, a careful testator gets first and final say as to what happens if a beneficiary predeceases him. The testator may name an alternate beneficiary for each devise, or he may specify that if any beneficiary predeceases him, that person's offspring shall take that share. It is only when the testator is silent regarding who should inherit if a specific beneficiary dies that the California anti-lapse statute applies.
If a Beneficiary Dies before You
The person making a will is termed the testator. An asset you leave to a beneficiary under your will is termed a devise. But to collect the devise, or inheritance, that person must be alive at the time the will becomes effective -- at the moment of your death. When one of your beneficiaries dies before you, the devise to that person is said to fail or lapse. The question of what happens to that lapsed devise is answered in California by the probate court applying state law.
Unintended Results
In some states, a lapsed devise passes to the person named to inherit the remainder of the estate after all individual gifts to others are disbursed. This may or may not be what you intended. For example, if you leave a small sum to your housekeeper who predeceases you, it may make sense for the devise to pass instead to your daughter, who you named to be the residual beneficiary of the estate. However, if you leave your estate in equal shares to your two daughters with your second wife named as the residual beneficiary, the death of one daughter before the will is effective means that her share passes to your second wife, not to your daughter's children, your grandchildren.
California's Anti-Lapse Statute
California addresses an often unintended outcome with its anti-lapse statute. The statute provides that a lapsed devise passes to the direct, lineal descendants of the deceased beneficiary if the beneficiary was a blood relative of the testator or his spouse. Under this application, a lapsed devise to a deceased son passes to his children or grandchildren, while a lapsed gift to a deceased friend passes to the residual beneficiary of the will, if any. If no residual beneficiary is named in the will, the lapsed inheritance passes to close blood relatives under California's intestate succession laws.
Testator's Wishes Control
In California, by inserting alternative language in his will, a careful testator gets first and final say as to what happens if a beneficiary predeceases him. The testator may name an alternate beneficiary for each devise, or he may specify that if any beneficiary predeceases him, that person's offspring shall take that share. It is only when the testator is silent regarding who should inherit if a specific beneficiary dies that the California anti-lapse statute applies.
Posted in: Estate Laws
