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When a beneficiary dies before the testator, the gift fails, or ?lapses.? When a specific, demonstrative or general bequest lapses, the lapsed gift simply becomes part of the residuary estate.
Anti-lapse statutes are laws enacted in every state that prevent bequests from lapsing when the intended beneficiary has relatives covered by the statute.
What is the difference between a testator vs. executor? A testator is a person who owns and creates the will, while the executor is an individual appointed by the testator who follows the instructions of the will after the testator passes away.
Lapse statute (also called anti-lapse statute) is a rule of construction in trusts and estates law that prevents a devise from lapsing. Under common law, if a person devised a gift to a devisee and the devisee passed prior to the testator, the gift would ?lapse? or fail, leaving the property to intestacy laws.
To avoid the predeceased beneficiary's gift from lapsing, all states have anti-lapse statutes. Specifically, if the predeceased beneficiary was a relative and had issue, the anti-lapse statutes provide for substitution of the deceased beneficiary's issue to take the gift instead of the beneficiary himself.
New York's anti-lapse statute known as EPTL Section 3-3.3, provides that whenever a deceased has left a bequest to a sibling or a descendant (child, grandchild, great-grandchild, etc.), the bequest does not lapse, rather it goes to the descendants of the deceased beneficiary.
A testator is someone who makes a will to dispose of their property and account for their debts after death. In order for a will to be valid, the testator must have what is legally described as ?testamentary capacity?, that is, they must be of sound mind and capable of understanding the significance of making a will.
The will must be in writing. The will must be signed in front of two witnesses and a legally authorized person (an attorney is fine). A certificate in the exact form of California Probate Code section 6384 must be signed, dated, and attached to the will.
Since 1 January 1954 all wills must be in writing. They can be written by hand, typed or printed. The signature of the testator/testatrix must appear at the end of the will. This signature must be made in the presence of two or more competent witnesses.
Definition of TESTATOR: (noun) / one who makes and executes a last will and testament, for example, if Tiffany has a will drafted and she executes the will, then Tiffany is referred to as the Testator. When Tiffany subsequently passes away, she is said to have died ?testate?, or with a will.