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Hastings Law Journal

Abstract

Revocable living trusts have become a standard estate planning tool for avoiding the time, expense, and delay of probate. These popular will-substitutes allow donors to pass property at death and achieve the same result as would be obtained through a testamentary disposition. However, whereas California testators are protected by remedial measures such as the lapse and antilapse statutes, revocable living trustors are not. In California, when a devisee predeceases the testator, lapse and antilapse statutes operate together to terminate those gifts that potentially would pass to strangers while saving gifts devised to family members and passing these gifts directly to the family member's issue. In contrast, when a beneficiary predeceases the trustor, absent express provision, modification, or revocation, the trust property will pass not according to the trustor's will but rather via the deceased beneficiary's will (or to his intestate heirs). Not only can this lead to inconsistent results between the will and the will-substitute, which ultimately may thwart the intent of the unwary trustor, but it also can lead to tracing problems if the beneficiary died long before the trustor.

Because revocable living trusts often function as will-substitutes, the dispository intent of the testator and the trustor are likely the same. Thus, this Note proposes that the California legislature enact "lapse" and "antilapse" statutes governing revocable living trust interests. Because revocable living trusts pass a present interest, trust remainders do not lapse like testamentary dispositions. However, the Note suggests that, in the absence of language to the contrary by the trustor, there should be a general statutory condition that a beneficiary must survive the trustor (simulating lapse) coupled with a savings provision that parallels the testamentary antilapse statute. In this way, wills and revocable living trusts will yield uniform results, and the trustor's intent will less likely be frustrated in the process of avoiding probate.

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