Death of Beneficiary during the Testator's Lifetime

Question 1

Can a testator make a gift to a deceased person?

Answer 1

No.

Question 2

What is an anti-lapse statute?

Answer 2

If a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses UNLESS the gift is saved by the state’s anti-lapse statute.

Question 3

What is NY’s anti-lapse statute?

Answer 3

The gift does not lapse but vests in the deceased beneficiary’s issue IF BOTH of the following conditions are satisfied:

a. the predeceased beneficiary was testator’s issue, brother or sister; AND
b. leaves issue who survive the testator.

This applies to individuals who disclaim their gifts - they are considered predeceased the testator.

Question 4

What happens if there is a lapse in the residuary gift?

Answer 4

Absent a contrary provision in the will, if the testator’s residuary estate is:

1. Devised to two or more persons; AND
2. The gift to one of them fails or lapses for any reason; AND
3. The anti-lapse sttute does not apply,

THEN the other residuary beneficiaries take the entire residuary estate in proportion to their interests.

Called the “surviving residuary beneficiaries rule” - and anti-lapse trumps this rule.

Question 5

What happens if a member of the class gift predeceases the testator?

Answer 5

Absent a contrary provision in the will, if a will makes a gift to a group of persons described as a gneric class (e.g. “children,” siblings,” etc.) AND some members of the class predecease the testator, the class members who survive the testator take in equal shares.

Question 6

How do you determine who the members of the class are?

Answer 6

Who is alive at the testator’s death will determine the takers of a class gift.

Question 7

What happens with a later-born class member?

Answer 7

The class closes at the time a distribution to a class must be made. Later born class members are excluded from taking as members of the class.

Question 8

When does the class close in an outright gift by will?

Answer 8

At the testator’s death.

Question 9

When does the class close when the gift is a life estate or an income interest with a remainder to a class of beneficiaries?

Answer 9

At the death of the life tenant or life beneficiary.