What Happens When A Devisee Predeceases The Testator?

A common question from persons creating their own last will is what happens if one of the beneficiaries named in my last will predeceases me? The most straight forward way to address this situation is to name contingent beneficiaries who take whenever a devise predeceases you. However, most basic last wills do not name contingent beneficiaries. In the case where a devise predeceases the testator, what happens is a matter of state law. The probate codes of many states have specific statutes addressing the situation called antilapse statutes.

Florida Probate Code §732.603 Antilapse; deceased devisee; class gifts is one such statute (often referred to as "antilapse" statutes). It provides two alternate results. Under Section 732.603(a), if the devisee who died is a grandparent or lineal descendant of a grandparent of the testator, then "the descendants of the devisee * * * take per stirpes in place of the deceased devisee or beneficiary." Let's look at an example to see how that works. Larry leaves his first cousin Sam $50,000. Sam has three children. Sam dies in June of 2008 and Larry in October, 2008. What happens to the $50k? As Larry and Sam are lineal descendants of the the same grandparent, under Section 732.603(a), the $50k shall be split evenly between Sam's three children. What if Sam is Larry's unrelated hunting buddy and instead of a close cousin? Under Section 732.603(b), the devise to Sam then lapses and the $50k specific bequest to Sam goes back into the estate to be distributed with the residuary of the estate as set forth in the last will.

Here is a list of links to antilapse statutes from selected other states:

• Arizona Probate Code Section 14-2603.
  
• California Probate Code Section 21110.
  
• Illinois Probate Code Section 755 ILCS 5/4‑11.
  
• Michigan Probate Code Section 700.2603.
  
• Missouri Probate Code Section 474.460.
  
• New York Probate Code Section 3-3.3 (click on Estates, Powers & Trusts).
  
• Texas Probate Code Section 68.