To lapse or not to lapse?

To lapse or not to lapse?

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By Linda M. Toga, Esq.

The Facts: My mother’s brother, Joe, never married and did not have any children. He died with a will in which he left everything to my mother and nothing to his other sister, Sue. In fact, Joe did not even mention Sue in his will. Unfortunately, my mother died before Joe. I am my mother’s only heir. Sue had a son named Keith.

The Question: Is Keith entitled to a share of Joe’s estate or am I in line to inherit the entire estate?

The Answer: Fortunately for you, there is an “anti-lapse” statute in New York that is applicable to your situation. Under the statute, you are the sole beneficiary of Joe’s estate.

How It Works: In order to understand how the anti-lapse statute works, you need to understand the terminology used in the statute. The “testator” is the person whose will is being probated. The people who receive assets under the will are “beneficiaries.” “Issue” refers to a person’s children, grandchildren and successive generations who can trace their bloodline directly back to the person. A “bequest” is a gift that is made in a will. Generally, a bequest made to someone who died before the testator will “lapse,” resulting in the gift being distributed to other beneficiaries under the will.

The New York anti-lapse statute is designed to prevent the lapse of bequests made to certain groups of people who die before the testator. If the predeceased beneficiary is someone other than the testator’s own issue or siblings, the bequest lapses. 

For example, if Joe made a $50,000 bequest in his will to a friend and the friend died before Joe, the $50,000 bequest would lapse. The funds would not go to the friend’s children but would go to other beneficiaries under the will. In contrast, if the testator makes a bequest to a sibling and the sibling dies before the testator, the bequest does not lapse.

Instead, the bequest vests in the issue of the beneficiary. In other words, the assets allocated to the predeceased sibling will pass to that sibling’s children or grandchildren.

Since Joe and your mother were siblings, and your mother died before Joe, the bequest made to your mother will pass to you. However, if bequests had been made to both your mother and Sue, Sue’s son Keith, would, in fact, be entitled to a share of Joe’s estate. That is because the anti-lapse statute would dictate that the share of Joe’s estate allocated to Sue would pass to her issue.

There is often confusion among the beneficiaries of a will when one of the beneficiaries predeceases the testator. One way to avoid this confusion is to update your will not only when the people you name as executors and trustees die but also when a beneficiary dies. Naming contingent beneficiaries in your will also helps bring certainty and clarity to the probate process.

Linda M. Toga, Esq. provides legal services in the areas of estate planning and administration, small business services, real estate and litigation from her East Setauket office.