Death of beneficiary during testator's lifetime

Question 1

Can the testator make a gift to a dead person?

Answer 1

Of course not!

Question 2

What is anti lapse?

Answer 2

If a beneficiary dies during the testator’s lifetime, the gift to the beneficiary lapses (fails) unless it is saved by the states anti lapse statute.

Question 3

What happens with the NY anti-lapse statute?

Answer 3

The gift does not lapse but vests in the deceased beneficiary’s issue if two conditions are met:

1) A pre-deceased beneficiary was T’s issue; and
2) issue leaves issue who survived testator.

Question 4

Do I get anti lapse if I say ‘to my brother if he survives me’?

Answer 4

No way. It kills it. A condition to a bequest generally kills anti-lapse.

Question 5

What about if you name your adopted out child? Can the anti-lapse statute save that even though they lose inheritance rights from the birth parent?

Answer 5

Yes the statute does save this situation.

Question 6

What happens where a gift fails or lapses and the anti-lapse statute does not apply? What happens to the residuary?

Answer 6

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