When a devisee or legatee dies after the testator executes his will but before the will becomes effective, the gift to him fails or lapses. For example, when a Beth, a testator's sister, predeceases the testator, the gift to Beth lapses, and goes to the residue.
In California Probate Code Section 21110, the antilapse statute applies if the devisee who predeceases the testator was kindred of the testator or the testator's spouse. Section 21110 provides if: "a transferee . . . fails or is treated as failing to survive the transferor . . . the issue of the deceased transferee take in the transferee's place in the manner provided in Section 240." For purposes of Section 21110, "transferee" is limited to "a person who is kindred of the transferor or kindred of a surviving, deceased, or former spouse of the transferor."
For example, Beth, the testator's sister, dies leaving a child, Norm. Since Beth was kindred to the testator, the gift would pass to Norm, Beth's issue.
An antilapse statute protects attempted devises from otherwise lapsing and the property passing instead by intestacy. Antilapse statutes prevent unintended disinheritance of one or more lines of descent, by presumptively creating an alternative gift in favor of the descendants of certain of the decedent's predeceased relatives.
If you have any questions with regard to estate planning, please contact our office at 1-800-303-2964. Rinne Legal is located at 1990 North California Blvd., Walnut Creek, California 94596, with additional offices in Fairfield, Oakland, and Sacramento. Rinne Legal offers free initial consultations.
