Will Anti-Lapse and Substitute Gifts in Illinois
At a glance
| Instruments and gifts covered | Will legacies of present or future interests; future interest vested before enjoyment is excepted from substitution clauses (755 ILCS 5/4-11). |
|---|---|
| Which devisees qualify | Individual legatee or deceased class member must be testator's descendant for descendant substitution (755 ILCS 5/4-11(a)–(b)). |
| Death or failure trigger | Descendant legatee/class member dies before or after testator, before possession or enjoyment; other pretestator death may lapse (755 ILCS 5/4-11). |
| Descendant survival period | Substitute descendants must be living when legacy takes effect in possession or enjoyment; no fixed-hour count in § 4-11. |
| Who takes and how | Living descendants of deceased descendant legatee or class member take that share per stirpes (755 ILCS 5/4-11(a)–(b)). |
| Class gifts | Living class members take dead member's share; if dead member was testator's descendant, that member's then-living descendants take per stirpes (755 ILCS 5/4-11(b)). |
| Failed gift and residue | Other legacy lapsed by pretestator death joins residue; failed residuary share passes to remaining residuary legatees proportionally (755 ILCS 5/4-11(c)). |
| Contrary intent and survival words | Testator may expressly provide otherwise in will; vested future interest before enjoyment excluded from clauses (a)–(b) (755 ILCS 5/4-11). |
| Alternative gifts and appointments | Express will terms can alter § 4-11; its text addresses legacies, without resolving separate appointment outcomes. |
| Trust and nonprobate reach | § 4-11 speaks to will legacies; it does not determine succession under a separate trust or nonprobate designation. |
Requirements one by one
A deceased descendant's legacy
Under 755 ILCS 5/4-11(a), a legacy of a present or future interest to the testator's descendant can be replaced even if that legatee dies after the testator. The deceased legatee's descendants must be living when the legacy takes effect in possession or enjoyment; they take per stirpes. The final sentence of § 4-11 removes a future interest from this substitution rule if it is or becomes indefeasibly vested before possession or enjoyment.
A class gift
Under § 4-11(b), surviving class members ordinarily take a dead class member's share at possession or enjoyment. If the dead member was a descendant of the testator, that member's then-living descendants take the share per stirpes instead. The same vested-future-interest limit applies to this class rule.
A lapsed gift and the residue
Under § 4-11(c), another legacy that lapses because the legatee died before the testator enters the will's residue. If it is or becomes part of the residue, the remaining residuary legatees take in proportions corresponding to their interests there.
What trips people up
The timing for substitute descendants is when the legacy takes effect in possession or enjoyment, which may be after the testator's death. The result also changes if a future interest vested indefeasibly before that point (§ 4-11). The testator can expressly provide a different rule in the will.
Common questions
Can descendants take when the named legatee dies after the testator? Yes, for a covered legacy to the testator's descendant if § 4-11(a)'s possession or enjoyment and vesting conditions are met.
What happens if a deceased class member was not the testator's descendant? Under § 4-11(b), the living members of that class take the deceased member's share when the legacy takes effect in possession or enjoyment, unless the will expressly provides otherwise.
Statutes and sources
- 755 ILCS 5/4-11. The source fields above provide verbatim excerpts, an official section URL and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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