Predeceased Will Beneficiaries (Anti-Lapse)

Question 1

Under the general rule, what happens to a beneficiary’s share if that person pre-deceases the testator?

Answer 1

Testators cannot bequeath things to dead people. The gift to the beneficiary lapses unless saved by the anti-lapse statute.

Question 2

What two conditions must be satisfied for anti-lapse to apply in NY?

Answer 2

1. the predeceased beneficiary was the testator’s sibling or issue
2. the predeceased beneficiary leaves issue who survive the testator.

Question 3

What happens to the gift to a predeceased spouse?

Answer 3

The gift lapses and is not saved by ant-lapse (spouse ≠ sibling or issue).

Question 4

If a will bequest is conditioned on survival (“…if he survives me.”) will anti-lapse apply if the beneficiary is the testator’s sibling or issue?

Answer 4

No - conditional language trumps anti-lapse.

Question 5

What happens to a gift to a child who was adopted by a non-relative?

Answer 5

In NY - it is saved by anti-lapse if the testator specifically names the son that was adopted by someone else.

Remember: general rule is that a child who has been adopted by a non-relative does not have inheritance rights from the birth family.

Question 6

If testator’s residuary estate is devised to more than one person, and one predeceases testator, what result?

Answer 6

If anti-lapse doesn’t apply, their amount goes back into the residuary pool - and the remaining residuary beneficiaries will split it.

But - anti-lapse will apply if the predecedent is a sibling or issue of the testator.