Cross Over Issues of Wills and Estates in Florida: Lapsed Gifts

We can define estate planning as the managing and passing of your assets through the preparation of documents and retitling of assets. The process of linking Asset Protection with estate planning is called integrated estate planning and they work together to form a comprehensive plan. Having one without the other is incomplete. Every person should have an estate plan so that they can control who gets their assets at death. In addition, the estate plan covers an individual should he or she become incapacitated.

A will is a document that is written by a testator designating where his or her assets will go at death. A valid will must be executed when the testator has testamentary capacity. In other words, the testator must be of sound mind and at least 18 years old or an emancipated minor at the time the Will is executed. The testator must also understand who his or her heirs should be, even if he or she chooses someone else.

Will contests are very costly and can take years. Only someone with standing can contest a will. Standing means that the person is either a natural heir of the decedent or was named in an earlier will. A girlfriend who was never named in a will cannot contest that will. However, if the girlfriend got all the money under the will, the kids can contest. However, just because someone has standing to contest doesn’t mean they have a good case.

Lapsed gifts are where there is a bequest under a will to someone and that person dies before the testator. The question then becomes: what happens to that bequest? A properly drafted will always provides a substitute beneficiary. Lapse occurs when there are no substitute beneficiaries provided in a will– where the bequest fails as if the gift were never made. However, in most states there is an anti-lapse statute, which says that if the beneficiary is a descendant of the testator, then that person’s issue (or children) would take the bequest instead of the deceased beneficiary.

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