By: Jeramie Fortenberry; Filed Under: Florida Probate
It is often the case that someone named in a will predeceases the testator. Suppose, for example, that Barack creates a valid Last Will and Testament that leaves his prized basketball to Joe (he knows that Joe thinks that this basketball is a big effing deal) and the rest of his estate to Michelle. Joe dies three months before Barack. Who gets the basketball?
This fact pattern brings up the concept of lapse. Lapse is a common law concept that applies when a person named in a will dies before the person creating the will (the testator). Stated simply, lapse means that gifts to individuals that die before the testator will pass to the residuary estate of the testator (and not to the estate of the predeceased beneficiary).
As applied to the fact pattern above, the basketball would pass to Barack’s residuary estate. Since Michelle is the residuary beneficiary (she gets the rest of Barack’s estate), the basketball will pass to her. Joe’s heirs will not get any interest in the basketball.
What if the residuary beneficiary predeceases the testator? In the above example, suppose that Michelle also dies before Barack. Who gets what? In this case, if there is no alternate residuary beneficiary named, the basketball (along with the rest of the estate) would pass as though Barack had died without a will (intestate). This rule is called “the doctrine of no residue of a residue,” meaning that any portion of the residuary estate that does not pass under a will is not really part of the residue at all.
The application of the concept of lapse is fairly mechanical: If a person named in a will predeceases the testator, his or her share goes to the residuary estate. Period. Because this rule can yield harsh results, most states have passed laws that override the common law rule in specified situations. These laws, called “anti-lapse statutes,” typically provide that gifts to certain relatives of the testator will not lapse. Instead, they are distributed to certain descendants of the predeceased beneficiary (not the testator).
If you have questions regarding your will, contact me at 239-233-0222. I am a licensed Florida attorney serving areas in Hendry County: Labelle, Clewiston, Pioneer, Flaghole, Montura, Hooker’s Point; areas in Glades County: Buckhead Ridge, Moore Haven, Lakeport, Palmdale, and Muse; and, areas in Lee County: Alva, Buckingham, North Ft. Myers, Ft. Myers, and Bonita Springs.
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