How to Structure an Arizona Will to Prevent Lapses in Bequests

In drafting your will, it is important to guard against the possibility that the bequests you make might lapse due to unforeseen circumstances. A lapse occurs when a named beneficiary dies before you or when a beneficiary is unable or unwilling to accept the bequest. You’ll want to be sure to make provisions to prevent this from happening and to direct alternative distributions if it does.

A bequest is a gift to another person, charity or institution directed in a will. It can consist of cash, securities, real estate or personal property. A will can include bequests of various types, such as these:

• Specific bequest— This is a gift of a specified item or asset to a particular person. For example, leaving an item of jewelry to a child.
• General bequest — This is a gift of a certain amount of money or property from your estate. For example, $10,000 or 25 percent of your estate to a named charity.
• Residuary bequests — This is a gift of all or a portion of your estate that remains after all specific and general bequests have been made and all other payments made.

Arizona has an anti-lapse statute, ARS 14-2103, which states that if a beneficiary dies before the maker of the will, the bequest will pass to the beneficiary’s descendants. However, the statute applies only to bequests made to lineal descendants, such as children, grandchildren and great-grandchildren. It does not apply to bequests to collateral relatives, such as siblings, nieces and nephews.

To prevent lapses in bequests to collateral relatives, or to other beneficiaries not covered by the anti-lapse statute, there are a few things you can do. One option is to use a gift-over clause, which provides that if the named beneficiary dies before you, the bequest will pass to another named beneficiary. For example, you could make a bequest to a sibling, with a gift-over to a niece or nephew if the sibling dies before you.

Another option to prevent lapses is a class gift. This is a gift to a category of people, rather than to specific individuals. For example, you could leave a bequest to your “nieces and nephews.” If one of the nieces or nephews dies before your, the bequest will pass to the others proportionately.

Still another way to prevent lapses is to make contingent bequests. These take effect only if certain conditions are met. For example, the will can require that a named beneficiary be married in order to receive the bequest, and that if not, the bequest goes to someone else.

An experienced Arizona estate planning attorney can draft a comprehensive will that you can be sure will carry out your intended distribution of your estate.

Jeffrey P. Hall, PLLC is an estate planning law firm with offices in Phoenix, Peoria and Chandler. I assist people across Arizona with creating strong wills and trusts. To schedule your free initial consultation, call me at 480-409-5174 or contact me online.