Not all gifts written into a last will make their way to the named beneficiary. In some circumstances, a gift will fail or lapse. We go into detail on lapsed gifts in our article, What Does it Mean for a Gift to Lapse?
What happens to a gift that doesn’t make it to the named beneficiary?It depends on what the will says. It could also depend on the relationship between the testator and the beneficiary.
Look to the will for guidance.If the will provides instructions as to what should happen if a beneficiary predeceases the testator, then those instructions control. For example, “I, Taraa, leave my engagement ring to Myrna. If Myrna fails to survive me, I then leave my engagement ring to Valentina.” Here, if Myrna predeceases Taraa, then Valentina is entitled to the ring.
Look to the law for guidance.If there are no instructions in the will as to whom should receive a gift if the primary beneficiary predeceases the testator, then the law controls. In most cases, the gift will pass to the residuary beneficiary, meaning the beneficiary who is entitled to the “rest, residue, and remainder” of the estate (aka the person who gets everything left over after specific gifts are made to those entitled to them).
If there is no residuary beneficiary, or if it’s the residuary gift that lapses, then the gift is distributed according to the laws of intestacy (the people entitled to your estate if you leave no will). But don’t forget that the anti-lapse statute provides an exception.
New York’s Anti-Lapse Statute
Gifts to the testator’s issue (children, grandchildren, and so on) or a sibling who predecease the testator do not lapse as long as the beneficiary left issue.
To illustrate, let’s change the example above and have Taraa leave her engagement ring to her sister, Rosa (instead of to her best friend). And let’s assume that Taraa’s last will did not provide an alternate in the event that Rosa predeceases Taraa. If Rosa does predecease Taraa, and Rosa was survived by one son, Vincent, then the anti-lapse statute kicks in. The gift does not lapse and instead passes to Rosa’s issue, Vincent.
If you’re an executor facing this issue, you could be liable if you distribute property to the wrong beneficiary. Contact an attorney to ensure you properly administer the estate’s assets. It would be a lapse of judgment not to!
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