Consider the following common scenario: Mark is a successful business executive in his mid-50s. He worked hard over a number of years and, in the course of time, amassed a sizable estate. He owns a home in Northern California and has put away savings over the past 10 years. Now, he decides to draft a will.

Mark goes to his lawyer, who provides Mark with a questionnaire concerning whom Mark wants to be his heirs. Mark divorced a few years ago and has an only child who is estranged from Mark and suffers from drug addiction. Having resentment towards his son and feeling that leaving him money will just enable him to procure more drugs, Mark decides that he will leave a small amount to his son to be held in a trust. Other parts of the estate will go to his brothers. The bulk of his estate will go to his friend Tom. Tom and Mark are childhood friends. Tom has always been there for Mark, providing him support during his divorce battle and providing comfort to Mark in regards to his difficult relationship with his son.

At age 65, Mark retires. He spends the next 10 years traveling and real estate investing. The traveling was great and the real estate investing was very successful. At age 75, Mark passed away suddenly due to a heart condition.

Following Mark’s passing, his son, who had not spoken with his father in years, emerged. Mark’s lawyer, who was the named will administrator, unsealed Mark’s will. As Mark directed to his lawyer, Mark’s son and brothers were to inherit a portion of his estate, and Tom the bulk of it. Mark contacted Tom’s wife, who stated that Tom passed away five years before. In the meantime, Mark never changed his will, which, in legal terms, created a lapse.

Anti-Lapse Statue

Section 21110 of the California Probate Code outlines the “anti-lapse” rule, wherein the law provides that an heir will take the lapsed portion of the will instead of California intestacy law, which is the law that applies when a person dies without making a will.

The idea behind the California anti-lapse rule is that the property remains with the family. Under the anti-lapse rule, only blood relatives or the spouse of the person who passed away is eligible for an inheritance.

In this situation, Mark left most of his property to Tom, a non-relative who was not alive at distribution. As a result, the property would pass to Mark’s son and brothers. Mark specifically did not want his son to have the bulk of his estate, yet his son would receive that property nonetheless.

Preparing for a Lapse

When drafting a will, it is important to keep in mind that a lapse may occur. To prepare for a possible lapse, the person drafting the will should state that property goes to person X if that person survives the testator, if not the property should go somewhere else. Having this in mind will allow the testator to properly manage property distribution.

Considering drafting a will? Speak with the Hayward estate planning firm of Melanie Tavare