The Anti-Lapse Statute
If you forgot to name an alternative heir, the court will still try to resolve your will before moving to probate.
California, like most other states, has what is known as an “anti-lapse statute.” Under this statute, the gift intended for a deceased beneficiary may pass on to the “issue of the deceased transferee.” In other words, if the deceased beneficiary had any children, the inheritance will be disbursed to them.
However, the anti-lapse statute has two very important qualifiers:
- A gift can only be passed on to a person related to or a “kindred” of the intended beneficiary. If they do not have children, or a spouse, the anti-lapse statute cannot be applied.
- A will writer can include a provision in their will stating that they do not wish the anti-lapse statute to be applied.
Residuary Clauses
The anti-lapse statute takes effect if a person does not make alternate arrangements for the inheritance due to a beneficiary’s death.
If the anti-lapse statute does not apply to the deceased—if they were, for instance, a close friend or an in-law rather than a blood relative—the remainder of the estate may be divided through California’s residuary clause.
The residuary clause will distribute the deceased beneficiary’s assets equitably among all named heirs, based on their relative, percentage-based share of the estate.
How A California Probate Attorney Can Help
If you want to write a will, establish a trust, or revise an existing estate planning document, an attorney can help ensure that your legacy is secure from the probate court’s arbitrary rules.
We can also help you make sense of a contested will, especially if the other beneficiaries disagree over who should inherit a predeceased person’s share.
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