If you leave property for someone in your will, and that person passes away, where does your property go? Most states address this issue with an “anti-lapse” statute. We explain how these work.
Let’s say you make a will and leave all our property to your son. You are the “testator,” and your son is the sole “beneficiary.” When a beneficiary dies before the testator, the gift fails, “lapses.” That means it will go through the residuary clause of your will, which states what is to be done with all your property not given to a specific beneficiary. If you do not have a residuary clause, or the beneficiary of the clause has also passed away, your property will be distributed according to intestacy laws.
An anti-lapse statute is intended to prevent the gift from failing. These statutes provide that if the predeceased beneficiary was a relative and had issue, the anti-lapse statutes provide for substitution of the deceased beneficiary’s issue to take the gift instead of the beneficiary himself. In other words, consider again the example where you left all your property to your son who passed away. If your son had children, an anti-lapse statute would allow your gift to your deceased son to pass to his children. That may or may not have been your intent, but that’s what happens.
tates have various definitions for which relatives qualify under their respective anti-lapse statute. Utah has enacted anti-lapse statutes that apply to wills, revocable trusts, and also beneficiary designation arrangements. The statutes apply where the predeceased beneficiary is a grandparent of the decedent, a descendant of a grandparent of the decedent, or a step-child of the decedent.
Frankly, we think it’s inexcusable to rely on an anti-lapse statute. It’s a fail-safe that is intended to assist the testator who had a self-drafted will or trust, or went to someone that really didn’t have the skills to prepare estate planning document. It is a bad practice to fail to designate successive beneficiaries. At our office we try to anticipate all of the possible scenarios that can happen, including a named beneficiary predeceasing the testator or trust grantor. We anticipate the worst case so you can make informed decisions.
We have plenty of examples to draw from. One client recently stated that if his children and their children predeceased him, he would like his living siblings to receive everything per capita, along with his church. The anti-lapse statute would not provide that. It’s imperative to use a competent estate planning attorney who specializes in this area.
The Astill Law Office has provided high quality legal services for over 30 years. We specialize in wills, trusts, estate planning, and asset protection. If you have any questions about creating a Trust, Will, or estate planning in general, contact The Astill Law Office at 801-438-8698.