Often times, people may choose to write their will long before they actually get incapacitated or pass away. One situation that can occur is where a person meant to receive an item (i.e. a “devise”) from the will dies before the death of the person who created the will. 

In such a situation, the item that was supposed to transfer to the now deceased person is said to have “lapsed.” This can have various consequences in terms of the will.

What are Some Consequences of a Lapsed Devise in a Will?

When a devise in a will has lapsed because the intended recipient has passed away before the creator of the will has passed away, there may be a few options to pursue. First, the will must be reviewed to determine if an alternative disposition or arrangement has been made. For example, people sometimes include language such as “if this person is to predecease me (die before me), then my property shall go to [insert person’s name] instead.” 

If no alternate disposition or transfer alternative has been made in the will, then the devise may go to the estate of the creator of the will. When a devise reverts back into the estate of the will’s creator rather than out to people, those items are said to have gone into the “residuary estate.” This term is fitting because these items are left over, or are the “residue,” from the will, since their intended recipients have died. 

Next, the items in the residuary estate will pass through the probate process, and the state distributes the items accordingly. A specific order of distribution is established in each state’s intestate succession rules. The probate courts follow these intestate succession rules when distributing property left over in a person’s residuary estate. 

Finally, if there are no heirs under intestacy distributions, the gift will be considered void. The state will typically take possession of voided gifts or devises.

What is an Anti-Lapse Statute?

Anti-lapse statutes are state laws which substitute other recipients for the person who predeceased the person who wrote the will. Anti-lapse statutes may vary from state to state. However, they typically substitute the children of the person who was to receive under the will. These statutes generally assume that the person who wrote the will would rather give to the person’s children rather than go through the various processes mentioned above.

For instance, suppose that Mary makes a will that transfers half of her estate to Bob. Suppose that Bob dies before Mary. If there is an anti-lapse statute in place, then Bob’s children will most likely get half of Mary’s estate.

Most states limit the protection of anti-lapse statutes to the recipient’s relatives. Then, if the anti-lapse statute restricts the protection to relatives only, Bob’s children can only inherit from Mary if Bob is somehow related to Mary.

Finally, anti-lapse statutes can be overwritten by terms or clauses in the will itself. If the person who writes the will does not want the anti-lapse statute to be enforced, they explicitly say so in their will, and courts will usually honor this.

What are Class Gifts and Who Inherits a Lapsed Devise?

Class gifts in a will are given to a specific group of people rather than to a specific individual. For instance, if Jen writes a will which states “Each of my children shall have 25% of my estate,” then the will is giving a class gift (the class here would be the children). 

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, as the statement references specific individuals and not a general class of people.

Membership can be subject to change with class gifts. If Jen ends up having 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 who are born after the will is made.

This rule also applies to members of a class who die before the person who created the will. If one member of a class gift dies, then the rest of the class will receive the remainder of the gift.

For example, suppose Jen has two children named Mary and Bob. Suppose that Bob dies before Jen does. If Jen’s will document states that “Each of my children shall have 25% of my estate”, then Mary will take 50% of the estate. That is, Mary will take her portion of the estate as well as Bob’s portion of the estate.

The rule on class gifts is subject to other provisions, which again can depend on state laws. If the will makes an alternative disposition or a state anti-lapse statute is enforced, then those rules take priority over the class gift.

Should I Hire a Lawyer if I Need Help with a Lapsed Will?

Complications such as the situations above may arise when drafting a will. Most people may not understand or think of such complications. Attorneys, however, are trained to think of all the potential complications that can arise in connection with a will document. 

Therefore, the aid of a wills, trusts, and estates attorney may be necessary to ensure that any issues that may arise have a solution. Having property not go through the probate process is always a priority because people, not the probate court, should generally decide what happens to their property upon their death.