Anti-Lapse Statute in California

A devise is a clause in a will that leaves some kind of property, usually real property, to an identified person. It is possible for the person who is entitled to receive the property pursuant to a devise to pass away before the creator of the will does. In these cases, the question of who gets the property arises. Because the person who was entitled to the devise has passed away, the devise is said to have “lapsed” in legal terminology.

Does California Have an Anti-Lapse Statute?

Lapsing of a will often occurs because people may write their wills long before they pass away. As noted above, this may cause lapses as people who were supposed to receive property pass away before the testator, the maker of the will.

California law provides a solution for devises in wills that have lapsed. This law is the anti-lapse statute. It provides an alternative for the person who was originally entitled to the property when the executor seeks to probate a will in California.

However, there are limitations on who can be the substitute recipient of the property bequeathed in a will. To be a substitute recipient, a person must meet certain requirements. They must be a blood relative of the testator or a blood relative of the testator’s former spouse, whether deceased or still living, or their domestic partner.

If these requirements are met, California permits the substitute recipient to receive the property in the place of the deceased taker. The substitute recipient may be a direct descendant of the deceased taker, such as a child or grandchild. The substitute taker receives exactly what the original recipient was supposed to receive.

It is important to note that an anti-lapse statute can usually be overwritten by terms or clauses within the will. If the testator does not wish for the California anti-lapse statute to be enforced, they may express that in their will, and courts generally honor the request.

What Is a Will?

As noted above, devises are contained in a will. A will is an estate planning document in which a person, known as a “testator,” specifies how they want their property to be distributed after they pass away. A will can bequeath all kinds of property to heirs, including real property, such as a house, and personal property, such as a vehicle.

In general, in order for a will to be valid, it must meet the following requirements:

• It must be in writing;
• It must be signed by the testator;
• It must be witnessed by at least 2 or more competent witnesses; and
• The testator must have testamentary capacity.

Although it is not usually a requirement, a will should be dated. This may help at a later date if multiple wills are discovered. The most recent will is usually followed. A local attorney in California should be able to explain the details.

If a testator is unable to sign their will, they are permitted to mark it as their signature. Often, an X is accepted as a signature. The witnesses also signing the will can attest that the testator did, in fact, make that mark as their signature.

The witnesses signing the will should be uninterested parties, if possible. This means they are not named in the will or have a stake in the will.

Testamentary capacity is a legal term meaning that the person has the legal and mental ability to make a will. This requirement is typically satisfied if the person is over the age of 18, in the military, or legally married, and is aware of the following:

• They are creating a will;
• The will is in place to distribute their property after death;
• They are aware of what property is being distributed; and
• They comprehend who is receiving the property.

Will requirements vary by state. The requirements may also vary depending on the type of will being created. Wills, including holographic wills, typically do not require witnesses, so long as the document is written and signed by the testator.

A holographic will is a will that is handwritten by the testator without the presence of witnesses. In order for a holographic will to be valid, it must satisfy the following requirements:

• Be handwritten
• Be dated
• Be signed by the person who writes the will

Can My Will Be Changed?

A person is permitted to change or amend their will at any time. There are usually two ways in which this is accomplished: through a codicil or by writing a new will.

A codicil is a document that is made in addition to an existing will that allows for modification without needing to rewrite the entire will. It is created to do any of the following to the terms of a will:

• Add to them
• Subtract from them
• Revoke them
• Modify them

A codicil can be used to make minor changes, additions, and/or clarifications to an existing will. They usually do not have content limits but are best used to make brief and simple updates for things such as:

• The addition of an additional beneficiary, such as a new grandchild;
• The addition of a newly acquired property, such as a vacation property;
• The removal of a property that was sold;
• The removal of the name of someone that predeceased you; or,
• To change the executor.

There may be times when it is better to write a new will. This includes making significant updates, such as removing and revoking the interest of someone listed in the original will. For example, if a disinheritance is done using a codicil, both the original will and codicil are public records and may cause conflict with the disinherited person or entity.

Drafting a new will avoids future conflict with the surviving heirs and avoids comparison between previous intentions and the new plans. A new will should usually be drafted when:

• Revoking the interest of a beneficiary;
• The contents of the “old” will need to remain private;
• Creating a new trust or updating an existing trust; and/or
• There are several codicils already in existence.

A person does not need a reason to change their will and may do so at any time. A person has the right to change any detail for any reason. It is important to note that if the testator wishes to disinherit any person, this must usually be specified in the will. It is better to do this than to simply omit all mention of the person.

Does California Provide a Solution for Devises Left in Wills That Have Lapsed?

Lapsing of a will often occurs because individuals write their wills long before they pass away. As noted above, this may cause lapses as individuals who were supposed to receive property pass away prior to the testator.

California law provides a solution for devises in wills that have lapsed. The law is called the “Anti-lapse” Statute. It provides a substitute for the individual who was originally entitled to the devise.

However, there are limitations on who can be the substitute taker of the devise. In order to be a substitute taker, an individual must meet requirements. They must be a blood relative of the testator or a blood relative of the testator’s former spouse, whether dead or alive or their domestic partner.

If these requirements are met, California permits the substitute taker to receive the property in the place of the deceased taker. The substitute taker may be a direct descendant of the deceased taker, such as a child or grandchild. The substitute taker receives exactly what the original taker was supposed to receive.

It is important to note that an anti-lapse statute can usually be overwritten by terms or clauses within the will. If the testator does not wish for the anti-lapse statute to be enforced, they may say so in their will, and the courts will generally honor this request.

What Are the Consequences of a Lapsed Devise in a Will?

When a devise in a will has lapsed because the intended recipient passed away prior to the testator, there are options to pursue. The will itself must first be reviewed to determine if alternate disposition arrangements were included.

In some cases, testators include two or more options for their property in the event someone passes away before them. The phrasing usually includes, “Should Bob predecease me, my vehicle shall go to Mary instead.”

If no alternate was listed, the property dealt with in the lapsed devise may go to the testator’s estate. This is known as a devise reverting back to the estate and going into the residuary estate. This is the portion of the estate that is left after all debts and claims are satisfied, and all specific distributions, gifts, and bequests have been distributed to the named beneficiaries. In other words, it is the property that remains and has not been assigned to anyone.

A carefully drafted will often include a residuary clause. This clause provides instructions regarding what to do with the property in the residuary estate. This may include instructions on what to do with any bequests that are void or lapsed.

The property in the residuary estate passes through the probate process. The probate court would distribute the assets in the residuary estate according to the law of intestacy in California.

This means that the probate court would distribute the assets as they would be distributed if the testator had not had a will.

What Else Should I Consider Regarding a Lapse Situation with a Will?

Although California provides an anti-lapse statute that may assist when a devise lapses, the easiest way to avoid issues is careful drafting of a will and updating it as circumstances change It may be helpful to provide alternate heirs for each item of property that is bequeathed in the will, especially if the testator is young.

If the testator wants the California anti-lapse statute to apply, they may note this in the will. There may be cases in which a person wants a specific item, such as a family heirloom, to go to one person and no one else.

Do I Need a Lawyer to Help Me Draft My Will?

It can be very helpful for you to have the help of a lawyer when drafting your will. An experienced California last will and testament lawyer can help you draft a valid will that will be enforceable in court and achieve your goals. Few people know the law regarding wills and all of the circumstances that it should address.

LegalMatch.com can put you in touch with a lawyer who can help you review your property and ensure your property is distributed according to your wishes. They will also be aware of any special language requirements or considerations in your state.