When making a last will and testament, you may assume that the beneficiaries you name will outlive you. Of course, that is not always the case. So what happens, for example, if you leave your brother $10,000 in your will and he dies before you?
The Anti-Lapse Statute
Like many states, California has what is known as an “anti-lapse” statute. Under California’s version, if a named beneficiary is dead at the time a will is probated, the “issue of the deceased transferee” may inherit the gift in his place. So, to apply the anti-lapse statute to the above hypothetical, your brother’s children would receive the $10,000 gift you left him in your will.
There are two important qualifications to the California anti-lapse statute. The first is that a gift can only pass to a “person who is a kindred of” the person making the original will or that person’s spouse. In other words, the anti-lapse statute is only designed to keep property within the family. If you left a $10,000 gift to a good friend who is not a blood relative of you or your spouse, that money would not pass to the friend’s children under the anti-lapse statute.
The second qualification is that the person making the will can expressly overrule the anti-lapse statute. That is, if your will states, “I leave $10,000 to my brother if he shall survive me, otherwise this gift shall lapse,” then if your brother dies before you, his children would not automatically receive the $10,000 under the anti-lapse statute.
Your will may also specify that a person must survive you by a certain period of time before receiving a gift. So your will might say, “I leave $10,000 to my brother, provided he survives me by at least 30 days.” Such language is also sufficient to override the anti-lapse statute.
Making Your Intentions Clear
It is important to make it clear when you wish to override the anti-lapse statute. Courts are reluctant to read such language into a will absent evidence of the testator’s intent. For instance, a Maryland court recently declined to preempt that state’s anti-lapse statute in the case of a will where two of the three named beneficiaries had died before the testator. The sole surviving beneficiary argued the anti-lapse statute should not be applied, allowing him to inherit the entire estate. The Maryland Court of Special Appeals disagreed, noting there was no language making any of the bequests to the deceased beneficiaries conditional on their surviving him. The Court also pointed out the testator opted not to make a new will after the other two beneficiaries died. Accordingly, the court said the heirs of the two deceased beneficiaries would inherit from the estate.
This type of case illustrates the importance of using clear, unambiguous language in a will. An experienced San Diego estate planning lawyer can assist you with preparing a will and related documents. Contact the Law Office of Scott C. Soady if you would like to speak with an estate planning lawyer today.