Who receives the property if a person named in a Will is dead?

Full question:

My question involves who receives property if the person named in a Will died before the maker of the Will. So if a devisee named in the Will is dead at the time of the death of the testator what happens.

• Category: Wills and Estates
• Subcategory: Representation or Antilapse
• Date: 04/07/2025
• State: Florida

Answer:

What you refer to is sometimes called the right of representation or anti lapse laws. These laws provide what happens if a person named in a Will dies before the maker of the Will. The general rule is that if children of the maker of the Will die before the testator then their children will inherit their part. If the deceased child does not have children or grandchildren then this does not apply and other rules govern who receives the property.

These rules also apply if the person is dead when the Will is made such as where the testator was unaware of the death.

Representation or anti lapse laws in Florida are governed by the Florida Probate Code. Under that law, the people protected include grandparents, descendents of grandparents. This would include the grandparents, parents, children, grandchildren, brothers and sisters, nieces and nephews of the deceased. If any of those are named in the Will but die before the testator, their descendants next in line under the laws of intestate succession receive the property left to the deceased devisee.

However, if the maker or the Will or testator provides intent that representation does not apply to a person named in the Will, then the law does not apply and representation does not occur. For example, if the provision in the Will includes the statement “if he survives me,” or to “my surviving children,” then representation or antilapse does not apply. If words like "per capita" are used this could also mean antilapse laws do not apply.  Using "per stirpes" mean it does apply.

The Florida anti-lapse statute does not apply to trusts.

The Florida Probate code provides as follows:
  

732.603 Antilapse; deceased devisee; class gifts.—

(1) Unless a contrary intent appears in the will, if a devisee who is a grandparent, or a descendant of a grandparent, of the testator:

(a) Is dead at the time of the execution of the will;
(b) Fails to survive the testator; or
(c) Is required by the will or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the devisee’s surviving descendants who take per stirpes the property to which the devisee would have been entitled had the devisee survived the testator.

(2) When a power of appointment is exercised by will, unless a contrary intent appears in the document creating the power of appointment or in the testator’s will, if an appointee who is a grandparent, or a descendant of a grandparent, of the donor of the power:

(a) Is dead at the time of the execution of the will or the creation of the power;
(b) Fails to survive the testator; or
(c) Is required by the will, the document creating the power, or by operation of law to be treated as having predeceased the testator,
a substitute gift is created in the appointee’s surviving descendants who take per stirpes the property to which the appointee would have been entitled had the appointee survived the testator. Unless the language creating a power of appointment expressly excludes the substitution of the descendants of an object of a power for the object, a surviving descendant of a deceased object of a power of appointment may be substituted for the object whether or not the descendant is an object of the power.

(3) In the application of this section:

(a) Words of survivorship in a devise or appointment to an individual, such as “if he survives me,” or to “my surviving children,” are a sufficient indication of an intent contrary to the application of subsections (1) and (2). Words of survivorship used by the donor of the power in a power to appoint to an individual, such as the term “if he survives the donee,” or in a power to appoint to the donee’s “then surviving children,” are a sufficient indication of an intent contrary to the application of subsection (2).

(b) The term:

1. “Appointment” includes an alternative appointment and an appointment in the form of a class gift.
2. “Appointee” includes:

a. A class member if the appointment is in the form of a class gift.
b. An individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator.

3. “Devise” also includes an alternative devise and a devise in the form of a class gift.
4. “Devisee” also includes:

a. A class member if the devise is in the form of a class gift.
b. An individual or class member who was deceased at the time the testator executed his or her will as well as an individual or class member who was then living but who failed to survive the testator.

(4) This section applies only to outright devises and appointments. Devises and appointments in trust, including to a testamentary trust, are subject to s. 736.1106.

Reference:
http://www.leg.state.fl.us/Statutes/index.cfm?App_mode=Display_Statute&URL=0700-0799/0732/0732.html