In some cases, a will may leave assets to someone who is no longer living. If this occurs, this provision in the will is said to have "lapsed." Under California law, there is a specific statute that deals with this. Section 21110 of the Probate Code is designed to mirror what the testator would probably have intended if he had foreseen the event when he made the will.
Section 21110 states that if a beneficiary does not survive the person making the will, then “the issue of the deceased transferee take in the transferee’s place.” This means that the bequest would pass to the beneficiary's heirs. This prevents the bequest from “lapsing” and overrides California’s intestacy laws, the ones that decide who gets someone’s property if they die without making a will at all.
There is, however, one loophole in Section 21110. The anti-lapse statute is designed to keep property in the family, and it assumes that the beneficiary who died was related to the testator. Section 21110 only holds if the deceased beneficiary’s heirs are blood relatives of the testator -- the person who made the original will -- or the testator’s spouse. If the beneficiary who has died left all her property to a non-family member in her will, then the bequest that she can’t accept because she has passed away reverts back to the original testator’s estate.
Confirming the Law
If the provisions of Section 21110 are what you want if any of your beneficiaries predecease you, simply repeat that intent in your will. For instance, you would say that an asset goes to a certain beneficiary if he survives you, and if not, then it goes to his heirs provided that they are also your blood kin. Or, if you do nothing, this would automatically happen if your beneficiary’s heirs also happen to be related to you or your spouse.
Superseding the Law
You can supersede Section 21110 in your will if you do want your bequest to pass to your beneficiary’s heirs even if they are not related to you. You would state that you give item "X" to your beneficiary and if she predeceases you, then it is your intention that her heirs receive item "X" whether or not they are known to you or related to you. Similarly, you can cause the bequest to lapse by saying that if your beneficiary predeceases you, that is your intent -- you want the provision to lapse rather than pass to her heirs. In this case, the bequest would return to your estate and be distributed according to other terms of your will.
- Martindale.com Legal Library: Will That Contained Provisions To Exclude Unmentioned Heirs And To Disinherit Will Contestants Did Not Sufficiently Express An Intent To Preclude The Operation Of California’s Anti-Lapse Statute
- Rinne Legal: California Estate Planning Attorney Blog
- Law Office of Mary McQuillan: Dead People Can’t Own Property
Beverly Bird is a practicing paralegal who has been writing professionally on legal subjects for over 30 years. She specializes in family law and estate law and has mediated family custody issues.