New York Estate Planning & Elder Law Blog
Most people plan their estate believing that everyone they have left money or bequests to will survive them, such as when a parent specifies that money or property will be left to a child. But sometimes unexpected deaths happen and when it does, many people are left wondering what will happen to the property that they specified to go to the predeceased. It is a tricky situation, but thankfully New York law and proper estate planning precautions can address the problem.
New York “Anti-Lapse” Statutes
Common law followed in the past dictated that gifts to someone who was deceased was null and void. This is due to the fact that a dead person cannot own property. Since they cannot have property, they cannot inherit it. When someone left property to a person who had predeceased them, the bequest would be said to have lapsed. This would have unintended consequences, such as cutting out people who would have inherited the property if the bequest had not failed and others receiving more than the testator intended.
New York has what is called an “anti-lapse” statute in place that addresses this specific situation. Under New York Estates, Powers and Trusts Law Section 3-3.3, if a testator leaves a bequest to someone who is their brother or sister or to their issue, such as their children or grandchildren, the bequest will not lapse if the person predeceased the testator. Instead, the predeceased’s interest will pass on to their children. The law essentially creates an inference that instead of completely destroying the bequest, the testator would instead preferred that the children inherit their parent’s interest.
Updating your Documents is Key to prevent Lapsed Gifts
As mentioned previously, the law granting exceptions to lapsed bequests is very narrow. If a testator leaves property to someone who is not a sibling or their issue, the bequest will lapse and fail.
The only truly effective way to avoid lapsed gifts is to make sure that your estate planning documents are constantly up to date. It is always a good idea to review your documents at least once a year to make sure that the people you want to inherit from you are the people who will actually inherit. If a person who you have specified to inherit property from you has passed on before you, it is imperative that you remove their name from your documents or risk having your wishes not truly be fulfilled.
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