Lapsed Legacies and the Anti-Lapse Statute, Part 1

Most estate planners try to draft Wills for flexibility, but circumstances can and do obviously change.  As a result, we occasionally have to deal with cases where a decedent's wishes simply can't be honored -- or aren't known -- because of events that occurred after the decedent signed his Will.

Some important concepts in dealing with these situations are the Four A's: ademption, advancements, anti-lapse and abatement.  Today I'll deal with anti-lapse.

A gift to a beneficiary under a Will is said to have "lapsed" if the beneficiary does not survive the creator of the Will (aka the "testator").  For instance, if I sign a Will leaving my entire estate to my son, but my son dies the week before I do, then the gift to my son lapses.

The easiest solution to the problem of a lapsed gift is to use some foresight in drafting your Will.  If I am leaving property to someone, I should plan for the possibility that my beneficiary won't survive me.  For instance, I could say "I give my entire estate to my son if he survives me, or if he doesn't survive me, to my sister if she survives me."

If I don't plan ahead, the executor of my estate will need to consult the Illinois Probate Act to deal with this situation.  Section 4-11 of the Act addresses this situation and is commonly referred to as the "anti-lapse" statute.  This section states in relevant part that, if a beneficiary is a descendant of the testator, the gift will pass to the descendants of that descendant.  That sounds a little confusing, so let me share an example:

I leave my entire estate to my son under my Will

My son predeceases me, leaving three children of his own

Upon my death, my son's three children (my grandchildren) will receive my entire estate pursuant to the anti-lapse statute

The key language in the anti-lapse statute occurs at the beginning: "Unless the testator expressly provides otherwise in his will."  In other words, if I don't like my grandchildren, I should change my Will so that my property goes elsewhere if my son predeceases me.

Comments

[Bruce R. Johnson]

I believe that you meant to write that you should change your will so that your property goes elsewhere if your son PREDECEASES you.

[Joel S.]

Mr. Johnson-

Thanks for noticing that -- I've made the necessary correction.