California's Anti-Lapse Statute
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What Happens When the Person You Leave Something to in Your Will Dies Before You Do?
When you leave an item to someone in your will, it is termed a “devise.” The situation may occur where the person who is entitled to the devise dies before the creator of the will. In such a situation, the question arises as to who now gets the devise. Since the person who was supposed to get the devise has died, the devise is termed to have “lapsed.”
Does California Provide a Solution for Devises Left in Wills That Have Lapsed?
Yes, California does. In California there is a law called the “Anti-Lapse” Statute. This law provides a substitute person to take when the person who was supposed to take the devise (the deceased taker) has died. However, California establishes some limitations as to who can be the substitute taker.
First off, the deceased taker must have been a blood relative of the creator of the will, or a blood relative of the creator of the will’s former spouse (whether dead or alive) or domestic partner.
If this is so, then California allows the substitute taker to take in place of the deceased taker. The substitute taker can be a lineal descendant, such as a child or grandchild of the deceased taker. The substitute taker takes exactly what the deceased taker was supposed to take.
Do I Need a Lawyer to Help Me Draft My Will?
Lawyers are extremely helpful in advising clients who want to create a will. Lawyers are trained to think of complications such as death and substitute takers. A California lawyer can then help you realize who will get your property if certain complications arise. This will in turn better help you evaluate who you truly want to leave your property to at the time of your death. Thus, lawyers are extremely helpful and should be consulted when you create your will.
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Last Modified: 09-06-2012 09:17 AM PDT
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