Will Anti-Lapse and Substitute Gifts in Alaska

At a glance

Requirements one by one

Who receives a substitute gift

§ 13.12.603(a) covers a deceased devisee who was a grandparent, descendant of a grandparent, or stepchild of the testator or of a donor whose power was exercised by the will. The section expressly includes a person who had already died when the will was executed (§ 13.12.603(d)(5)). For a nonclass gift, surviving descendants take the deceased person's share by representation; for a qualifying class gift, each surviving member keeps the share that member would have had and a deceased member's descendants take that member's share by representation (§ 13.12.603(a)(1)–(2)).

The class-gift rule excludes broad classes such as “issue,” “descendants,” “heirs,” “next of kin,” “relatives,” and “family.” § 13.12.702(a) generally treats a person not shown to have survived an event by 120 hours as predeceased; subsection (d) sets exceptions for certain express survival terms and other situations.

Failed gifts and will terms

Under § 13.12.604, a failed nonresiduary devise joins the residue unless § 13.12.603 saves it. Where the residue has multiple devisees, a failed share passes to the other residuary devisees, proportionally if more than one remains.

§ 13.12.603(a)(3) says “if the individual survives me” or “my surviving children” does not, without additional evidence, defeat substitution. An entitled designated alternative devisee can supersede the substitute gift under subsection (a)(4). If two alternative substitute gifts remain, subsection (b) generally favors the primary one, subject to its younger-generation preference. A deceased appointee's descendant may substitute even if outside the power's objects unless the power expressly excludes that result (§ 13.12.603(a)(5)).

Trust and nonprobate boundaries

§ 13.12.707 separately tests a future trust beneficiary's survival at the distribution date and can create a substitute gift for that beneficiary's descendants. § 13.12.706 separately covers specified life-insurance, retirement-plan, pay-on-death and transfer-on-death designations, with its own alternative and class-gift terms. The will rule in § 13.12.603 should be read with these separate provisions when an instrument is not a will gift.

What trips people up

The protected relationship can be to the donor of a power of appointment, not only to the testator (§ 13.12.603(a)). But the power's own language may expressly exclude substitution for a deceased appointee (§ 13.12.603(a)(5)).

Common questions

Does a person who died before the will was signed count? Yes. § 13.12.603(d)(5) includes someone already deceased at execution.

Can the descendants of a deceased appointee take? § 13.12.603(a)(5) allows it unless the power expressly excludes substitution, even if those descendants were not objects of the power.

Does the same death date govern a trust remainder? § 13.12.707 uses the future interest's distribution date, which may differ from the testator's death.

Statutes and sources

• Alaska Stat. §§ 13.12.603, 13.12.604, 13.12.702, 13.12.706 and 13.12.707. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.