Will Anti-Lapse and Substitute Gifts in Idaho

At a glance

Requirements one by one

Qualifying devisees and issue

Under § 15-2-605, the devisee must be a grandparent or lineal descendant of a grandparent of the testator. The rule reaches a devisee already dead when the will was executed, one who later fails to survive the testator, and one treated as predeceased. Substitute issue must survive the testator by 120 hours. Issue of the same degree take equally; more remote issue take by representation.

The same section includes someone who would have been a class devisee if alive, whether that person died before or after will execution. § 15-2-601 begins, “A devisee who does not survive the testator by one hundred twenty (120) hours is treated as if he predeceased the testator”; its stated will-language exceptions follow.

Failed gifts and will language

Subject to § 15-2-605, § 15-2-606(a) sends a failed nonresiduary devise into the residue. Under § 15-2-606(b), a failed share of a multiperson residue passes to the other residuary devisees proportionately. Any estate part not effectively disposed of by will passes to heirs under § 15-2-101.

§ 15-2-603 gives effect to the testator's intention expressed in the will and applies these construction rules unless the will indicates a contrary intention. § 15-2-601 specifically recognizes will language addressing simultaneous death, a common disaster, or a stated survival requirement.

Appointments and trust gifts

§ 15-2-610 says, “A general residuary clause in a will, or a will making general disposition of all of the testator’s property, does not exercise a power of appointment held by the testator” unless the will specifically refers to the power or otherwise indicates an intent to include its property. § 15-2-603 governs the effect of an expressed alternative disposition.

For a qualifying pour-over devise, § 15-2-511(2) sends property into the recipient trust for administration under its governing instrument unless the will says otherwise. Under § 15-2-511(3), revocation or termination of that trust before death generally causes the devise to lapse. These provisions describe a will-to-trust gift, rather than a substitute gift to a trust beneficiary.

What trips people up

A would-be class devisee's death before will execution does not itself remove that person from § 15-2-605. The statute still requires the specified relationship and issue who survive the testator by 120 hours.

Common questions

Does the failed gift always become part of the residue? No. Section 15-2-606 makes its fallback subject to the substitute-gift rule in § 15-2-605.

Does a broad residue clause exercise a power of appointment? Section 15-2-610 requires a specific reference to the power or another indication of intent to include its property.

Statutes and sources

• Idaho Code §§ 15-2-101, 15-2-511, 15-2-601, 15-2-603, 15-2-605, 15-2-606 and 15-2-610. Verbatim official excerpts, section URLs, and access dates appear in the source fields above.