The word for today is “lapse.” In Texas, if a Testator
gives something to someone (the beneficiary) in his will, what happens if the beneficiary dies before the Testator
? Or to say it differently, what happens if the heir predeceases the maker of the will?
The general rule is
that if the beneficiary is a descendant of the Testator
, i.e. his children or grandchildren, the gift goes to the beneficiary’s descendants. The same would be true if the beneficiary is a descendant of the Testator
If the beneficiary is not a descendant of the Testator
or of the Testator
‘s parents, the gift lapses and goes to the person named as the residuary beneficiary. The residuary beneficiary is the person who the Testator
names as the person who gets “all the rest and residue of my estate” or similar language.
If there is no residuary clause in the will or the residuary beneficiary dies before the Testator
and is not a descendant of the Testator
or of the Testator
‘s parents, the gift lapses and the Testator
as to the property that would be in the residuary estate. It would then go to the Testator
‘s heirs at law.
However, the anti-lapse statute, §251.151-§251.153 of the Texas Estates Code (formerly §68 of the Probate Code, provides) “(t)his Subchapter applies unless the testator’s last will and testament provides otherwise.” For example, a devise or bequest in the testator’s will such as “to my surviving children” or “to such of my children as shall survive me” prevents the application of Subsections 251.153 and 251.154 (formerly Section (a) of the Probate Code §68.) In 2011, a court held that the testator’s will provided otherwise when he defined his residuary estate as ” the term “residuary estate” means all property in which I may have any interest (including lapsed gifts
)…” No. 01-10-00118-CV.
The court ruled that because of this language, the gift did lapse and went into the residuary estate even though in the will, the testator provided that the gift originally went to the testator’s children who predeceased him but who had children surviving.
Pearls of wisdom: A poorly drawn will may mean that your property goes to someone other than the person who you want to receive the property.