When you create your will you decide who receives your property after you die. Those you select become known as your beneficiaries and, as long as you do not change your will, they will inherit your property. But what happens if one of your beneficiaries dies before you do? Who inherits the property then?
When the beneficiary dies before a testator—a person who makes a will—the gift the beneficiary would have received is said to have lapsed. All states have created what are known as anti-lapse laws, or anti-lapse statutes, that direct how lapsed property passes in this situation.
However, you do not have to rely upon your state’s anti-lapse laws to address this possibility. You can create your own anti-lapse provision or clause in your will to determine what happens should the beneficiary predecease you. In this situation your anti-lapse clause will take precedence over state law.
For example, let’s say your state has a law that directs that any lapsed gift will pass to the deceased beneficiary’s descendants. This means that if you leave your child an inheritance and the child dies before you do, that inheritance will pass to the grandchildren.
But, you can also create an anti-lapse clause in your will that differs from state law. So, you might say that any lapsed gift will pass according to your residuary clause. Your residuary clause might state, for example, that your residuary property will pass to a charity.
Byrd : Garrett, PLLC is a member of the American Academy of Estate Planning Attorneys.