Lapsed Gifts in Wills

Published on 29 August 2022, 07:22:56 AM

Gifts you included in Wills decades or years ago may fail if they are lost, stolen or sold.

No matter how well intentioned your bequest was, probate may be caught up or delayed if your estate no longer resembles the Will you wrote.

Before you put your Will in a safety deposit box, check it for outdated bequests.  Your estate trustee and beneficiaries deserve the extra care and attention you put into updating or rewriting 

Wills that are no longer current.

Axess Law Wills and power of attorney lawyers draft new Wills for any circumstance. It’s a wise investment for long-term peace of mind. 

 

Why Gifts Lapse

When gifts are unavailable before or after you pass on, your estate trustee is unable to execute key parts of your Will. Bequests you made to friends, family or charity can no longer take effect because they simply don’t exist. Imagine the frustration a few, commonly overlooked steps could 

cause.

Suppose, for instance:

• beneficiaries die at the same time as you in a fatal accident
• investments you bequeathed to next-of-kin are lost in a stock market decline
• real estate you own drops in value, below the mortgage owing — your estate executor must pay your debts before they distribute any gifts
• assets you left unsecured in a joint bank account or under the mattress go missing. 

Your entire estate plan could be at risk. 

Dependants you planned to support financially after death may go without, all because gifts in your Will failed. If you develop dementia with age or are otherwise mentally incapable of adjusting your Will when your income changes, loved ones could suffer.

Is it time you modernize your Will?

 

Preventing Lapsed Gifts

Here are some simple steps you can take to protect your beneficiaries.

 

Writing Gift-over Clauses 

Use a gift-over clause to give assets like trust funds to alternate beneficiaries, such as siblings, beneficiaries’ spouses or children or charities. 

Gift-over clauses solve estate dilemmas when beneficiaries predecease you, leaving their gifts languishing in the courts. It gives you choices about who receives your assets. 

Without clear direction from you, the fate of lapsed gifts will be determined by a court, under the Succession Law Reform Act.

 

Appointing a Power of Attorney for Property

Your personal representative or estate trustee can’t change your Will after you’re gone. Only a probate court can consent to redistributing assets to fulfill your Will’s intent. 

Making a power of attorney for property with Wills enables someone you trust to speak for you. POAs are comforting reassurance your interests are being represented if you are mentally incapable of telling a court how you want your Will disposed of. 

Axess Law adds POAs to Wills for just $69.99 each or $99.99 for both power of attorney for property (your finances) and personal care. 

 

Making Inter Vivos Gifts 

Assets you gift to others during your lifetime through inter vivos trusts never lapse. Amend your Will — Axess Law writes new Wills every time (it’s cheaper and less confusing) — to exclude their value. 

 

Creating Hotchpot Clauses

Advance or loan bequests to beneficiaries. When you include a hotchpot clause in your Will, you make clear that your estate trustee should deduct their value from your last Will and testament. We refer you to our trusted legal partners to add hotchpot clauses.

 

Giving Class Gifts

Ensure new arrivals are acknowledged in your Will with class gifts. Planning ahead makes everyone feel included. Axess Law’s Wills and estate lawyers add phrases like “all my grandchildren” or “my grandchildren who survive me” to cover current and future beneficiaries. 

 

Rethinking Gift Nominatums

Nominating specific people to receive assets limits what your estate trustee can do. For example, your current Will may say a gift will go to “my three siblings.” Only those siblings can inherit that amount. The “class” is closed to any new recipients.

If other family survive both you and your siblings, your assets may not be distributed the way you hoped. Without a gift-over clause for gift nominatums, funds you set aside for siblings will go into estate residue. 

 

Leaving Gifts to Charity

Unlikely as it may seem, sometimes all beneficiaries die at the same time or shortly after you (within 30 days). Donating to charity in a Will if that happens prevents your precious assets from being given to distant relatives that you may have no relationship with. Leave your money to charities of your choice instead.

 

Fixing At-risk Wills

Your Will may unintentionally be at risk because of the way it’s written. Say you leave your home at 123 Jane Street to your daughter. If you sell that house, the gift is adeemed (no longer available). Your estate trustee and probate court are left guessing if your daughter inherits your new home at 456 Jacques Avenue. Axess Law writes your new Will to fix foreseeable problems that could frustrate your estate.

 

Conflicted Residue, Who Inherits?

Residue you planned to give to all your beneficiaries or donate to charity may go undistributed if it fails by the time your Will takes effect. 

You could, for example, leave specific amounts from your residue to particular people. But if your residue, what’s left over after all bequests are distributed, is reduced, those beneficiaries may not get any share.

When you make a probate court judge “sit in your armchair” and decide what your Will’s true intent was, you may get a different outcome than you planned.

 

Flat Fee Legal Services You Can Afford

Axess Law has Wills and estate advice you can count on.

Whether this is your first Will or one of many, we prepare new Wills that reflect your current financial situation. You may have married, divorced or become widowed since your last Will was signed and witnessed. Don’t leave new family members out because you neglected to include them. Axess Law writes a Will that adds all your desired beneficiaries.    

 

Book Appointments Online or By Phone

Executing a Will as estate trustee or personal representative? We have a probate lawyer near you. Our probate lawyers file court applications that allow you to distribute an estate you are responsible for. Your first probate consultation is free. 

Video conference with virtual lawyers or book an in person appointment at any of our Greater Toronto Area Axess Law locations or Ottawa. We’re open 7 days a week, with convenient day or evening appointments. 

Use our easy online booking form to find dates and times that work for you. Dial our 647-479-0118 lawyer line or toll-free to 1-877-402-4277 to speak with a legal representative today.