This blog previously discussed what happens if an heir passes away simultaneous with a testator and how the property that would otherwise go to the person who simultaneously passed away with testator ends up getting transferred. An obvious related question is what happens if an heir or beneficiary passes away prior to a testator? This blog also explored this issue in the past. It is now time to reexamine that issue in more detail and in light of the larger legal structure that the law provides for various contingencies that exist in the law regarding property passing via probate when some sort of mistake or event occurred that would otherwise leave the property unpassed to the next generation.

In both cases the law has default, fall back statutes to specifically address these sorts of scenarios. In the case of property or money left to an heir who predeceases a testator, if the property or money passes to siblings or children of the testator, New York’s anti-lapse statute controls and allows for that property or money to pass to that sibling or child’s heirs, almost as if the heir did not predecease the testator. If an heir passes away prior to distribution that bequest is considered to have “lapsed”. New York’s anti-lapse statute, as judged by its name, obviously prevents the lapse from occurring. In the absence of the anti-lapse statute, a bequest that fails to pass to the intended heir that heir predeceased the testator, the bequest becomes part of the larger estate, to be dealt with via other provisions in the will or otherwise dealt with through the application of the state’s intestacy statute. All states have anti-lapse statutes. In a sense the anti-lapse statute provides a substitute heir via statutory decree for the beneficiary who predeceased the testator.


New York’s anti-lapse statute only controls when the property or money to pass was supposed to go to a sibling or child of the testator and the predeceased sibling or child passed away after the will was properly executed. It only passes the property on to that pre deceased person’s children. It does not apply if the child or sibling were deceased at the time that the will was properly executed. An example may help to explain the issue in better detail. Grandfather passes away, his leaves $300,000 total to each of his three sons, to be divided equally ($100,000 each). Each son has two daughters. Grandfather leaves a total of $600,000 total to each granddaughter, to be divided equally ($100,000 each). Son number two predeceases grandfather. Son one and three each get $100,000. All grandaughters get at least $100,000 each. The two grandaughters who were the daughters to son number two get an additional $50,000 each (son number two’s $100,00). Put another way, granddaughters through sons one and three only get $100,000 each, granddaughters to son two get $150,000 each.

As you can see, New York allows for the distribution of the lapsed property or money to the pre deceased heir’s children, in equal shares. This form of descent that New York employs is called per stirpes. Issues arise as a result of this schema when someone leaves money or property to a class of individuals, such as when a parent leaves money to “all of my children”, but the testator had a child who predeceased the parent prior to the signing of the will and the testator failed to tell that to his/her attorney. What of the predeceased heir’s children? To make matters more complicated, if the testator leaves money or property via a will from another state and uses the term “per capita” that has a similar but distinct meaning, which is in turn affected by when the will was executed. There have been efforts in the recent past to address this and similar issues

As with most things in probate law what you put into your will is just as important as what you do not put in it. As such, it is imperative that you speak with an experienced estate planning attorney today.  

Contact Information