A devise is an item or piece of personal property that you leave, or bequeath, to an individual in a will. It is possible for the individual who is entitled to the devise to pass away before the creator of the will does. In these cases, the question of who gets the devise arises. Because the individual who was entitled to the devise has passed, the devise is said to have lapsed.

What is a Will?

Devises are contained in a document known as a will. A will is an estate planning document that allows an individual, known as a testator, to disperse their personal property and/or assets as they wish after they pass away. Many types of property can be given away in a will, including real property, such as a house, and personal property, such as a vehicle.

In general, in order for a will to be valid, it must include the following elements:

  • In writing;
  • Signed by the testator;
  • Witnessed by at least 2 or more competent witnesses; and
  • The testator has testamentary capacity.

Although it is not usually a requirement, a will should be dated. This may help at a later date if multiple wills are discovered. The most recent will usually apply.

If a testator is unable to formally sign their will, they are permitted to make a mark as their signature. Often, an X is accepted as a signature. The witnesses also signing the will can attest that the testator did, in fact, make that mark as their signature.

The witnesses signing the will should be uninterested parties, if possible. This means they are not named in the will or have a stake in the will.

Testamentary capacity is a legal term meaning the individual has a legal and mental ability to make a will. This requirement is typically satisfied if the individual is over the age of 18, in the military or legally married and is aware:

  • They are creating a will;
  • The will is in place to distribute their property after death;
  • They are aware of what property is being distributed; and
  • They comprehend who is receiving the property.

Will requirements will vary by state of residence. The requirements may also vary depending on the type of will being created. Wills including holographic wills, typically do not require witnesses, so long as the document is written and signed by the testator.

A holographic will is a will that is handwritten by the testator without the presence of witnesses. In order for a holographic will to be valid, it must satisfy the following requirements:

  • Be handwritten;
  • Be dated; and
  • Be signed by the individual writing the will.

Can My Will be Changed?

Yes, an individual is permitted to change or amend their will at any time. There are usually two ways in which this is accomplished: a codicil or writing a new will.

A codicil is a document that is made in addition to an existing will that allows for modification without needing to rewrite the entire will. It is created to do any of the following to the terms of a will:

  • Add to;
  • Subtract from;
  • Revoke; and/or
  • Modify.

A codicil can be used to make minor changes, additions and/or clarifications to an existing will. They usually do not have content limits but are best used to make brief and simple updates for things such as:

  • The addition of an additional beneficiary, such as a new grandchild;
  • The addition of a newly acquired property, such as a vacation property;
  • The removal of a property that was sold;
  • The removal of the name of someone that predeceased you; or,
  • To change the executor.

There may be times when it is better to write a new will. This includes making significant updates. This may include removing and revoking the interest of someone listed in the original will. For example, if a disinheritance is done using a codicil, both the original will and codicil are public record and may cause conflict with the disinherited.

Drafting a new will avoids future conflict with the surviving heirs and avoids comparison between previous intentions and the new plans. A new will should usually be drafted when:

  • Revoking the interest of a beneficiary;
  • The contents of the “old” will need to remain private;
  • Creating a new trust or updating an existing trust; and/or
  • There are several codicils already in existence.

An individual does not need a reason to change their will and may do so at any time. An individual has the right to change any detail for any reason. It is important to note that if the testator wishes to disinherit any individual, it must usually be specified in the will instead of just omitting that individual’s name.

Does California Provide a Solution for Devises Left in Wills That Have Lapsed?

Lapsing of a will often occurs because individuals write their wills long before they may pass away. As noted above, this may cause lapses as individuals who were supposed to receive property pass away prior to the testator.

California law provides a solution for devises in wills that have lapsed. The law is called the “Anti-lapse” Statute. It provides a substitute for the individual who was originally entitled to the devise. However, there are limitations on who can be the substitute taker of the devise.

In order to be a substitute taker, an individual must meet requirements. They must be a blood relative of the testator or a blood relative of the testator’s former spouse, whether dead or alive, or their domestic partner.

If these requirements are met, California permits the substitute taker to receive the property in the place of the deceased taker. The substitute taker may be a direct descendant of the deceased taker, such as a child or grandchild. The substitute taker receives exactly what the original taker was supposed to receive.

It is important to note that an anti-lapse statute can usually be overwritten by terms or clauses within the will. If the testator does not wish for the anti-lapse statute to be enforced, they may say so in their will and the courts will generally honor this request.

What Are the Consequences of a Lapsed Devise in a Will?

When a devise in a will has lapsed because the intended recipient passed away prior to the testator, there are options to pursue. The will itself must first be reviewed to determine if alternate disposition arrangements were included.

In some cases, testators will include two or more options for their property in the event someone does pass away before they do. The phrasing usually includes, “should Bob predecease me, my vehicle shall go to Mary instead.”

If no alternate was listed, the devise may go to the estate of the testator. This is known as a devise reverting back to the estate and going into the residuary estate. This is the portion of the estate that is left after all debts and claims are satisfied and all specific distributions, gifts and bequests have been distributed to the named beneficiaries. In other words, it is the property that remains and has not been assigned to anyone.

A carefully drafted will often includes a residuary clause. This clause provides instructions on what to do with the property in the residuary estate that has not been disposed of. This may include instructions on what to do with any bequests that are void or lapsed.

The property in the residuary estate will pass through the probate process. In this process, the state distributes the property. Each state has rules regarding the specific order of distribution. The probate court follows these rules when distributing the property in the residual estate.

If there are no heirs, a gift may be considered void. In these cases, the state usually takes possession of a gift or devise that is void.

What Else Should I Consider Regarding a Lapse Situation with a Will?

Although California provides an anti-lapse statute that may assist when a devise lapses, the easiest way to avoid issues is careful will drafting. It may be helpful to provide alternate individuals for each property that will be dispersed. Especially if the testator is younger.

It is also important to note in a will if the testator wishes for the anti-lapse statute to apply. There may be cases where an individual wants a specific item, such as a family heirloom, to go to one individual and no one else.

Do I Need a Lawyer to Help Me Draft My Will?

Yes, it is extremely important to have the help of a lawyer when drafting your will. An experienced California estate lawyer can help you draft a valid will that will be enforceable in court.

A lawyer can help you review your property and ensure your property is distributed according to your wishes. They will also be aware of any required special language or considerations in your state.