Lapsing of a Will
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When Does a Will "Lapse"?
Often times, people write their will long before they actually pass away. The situation sometimes occurs where a person meant to recieve an item (i.e. a "devise") from the will dies before the death of the person who wrote the will. In such a situation, the item to be left to the now deceased person is said to have "lapsed."
What Are the Consequences of a Lapsed Devise Made in a Will?
When a devise to someone has lapsed because the intended recipient has passed away before creator of the will has passed away, there are a few options. First, the will must be evaluated to determine if an alternative disposition has been made. Sometimes people include language such as "if this person is to predecease me, then my property shall go to [insert person’s name] instead."
If no alternate disposition has been made in the will, then the devises go to the estate of the creator of the will. When devises go back into the estate of the will’s creator rather than out to people, those items are termed to have gone into the "residuary estate." This term is fitting because these items are left over, or the "residue," from the will since their intended devises have died.
The items in the residuary estate will then go into probate and the state distributes the items accordingly. A specific order of distributed is established in each state’s intestate succession rules, and the probate courts follow these intestate succession rules when distributing property left over in the residuary estate.
Finally, if there are no heirs under intestacy, the gift will be considered void. The state will typically take possession of voided gifts.
What Are Anti-Lapse Statutes?
Anti-lapse statutes are state laws which substitute other people for the individual who predeceased the person who wrote the will. Anti-lapse statutes typically substitute the children of the person who was to receive under the will. These statutes assume that the person who wrote the will would rather give to the person’s children rather than go through the processes in the section above.
For instance, suppose that Mary makes a will giving half her estate to Bob. Bob dies before Mary. If there is an anti-lapse statute, then most likely Bob’s children will get half of Mary’s estate.
Note that anti-lapse statutes differ from state to state. Most states limit the protection of anti-lapse statutes to relatives. If the anti-lapse statute restricts the protection to relatives, then Bob’s children can only inherit from Mary if Bob is somehow related to Mary.
Finally, anti-lapse statutes can be overwritten by the will itself. If the person who writes the will does not want the anti-lapse statute to be enforced, he or she should explicitly say so.
What Are Class Gifts and Who Inherits a Lapsed Devise?
Class gifts are dispositions in a will which are given to a specific group of people rather than to a specific individual. For instance, if Jen writes a will which says "Each of my children shall have 25% of my estate," then the will is giving a class gift. If Jen writes a will which states that "My son Bob and my daughter Mary shall each have 25% of my estate," then that is not a class gift.
The important thing about class gifts is that membership is subject to change. If Jen has more children in the future, then those children will also inherit 25% under the class gift. A will which specifically names each child, however, will likely exclude any future children.
This rule also applies to members of a class who dies before the person who makes the will. If one member of a class gift dies, the rest of the class will take the remainder of the gift.
For example, suppose Jen has two children, Mary and Bob, and Bob dies before Jen does. Jen’s will states that "Each of my children shall have 25% of my estate." Mary will take 50% of the estate: Mary’s portion of the estate and Bob’s portion of the estate.
The rule on class gifts is subject to other provisions though. If the will makes an alternative disposition or a state anti-lapse statute is enforced, then those rules take precedent over the class gift.
Do I Need a Lawyer to Draft My Will?
Technically, a person does not need an attorney to draft a will. A person can draft his or her own will. However, complications such as the situation above may arise. Most people do not think of such complications. Attorneys, however, are trained to think of all the potential complications.
Therefore, with the aid of an estate planning attorney, a person can ensure that any and all issues that may arise have a solution. Having your property not go into probate is always a priority because people, not the probate court, should decide what happens to their property upon their death.
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Last Modified: 10-18-2013 04:13 PM PDT
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