Will Anti-Lapse and Substitute Gifts in Indiana
At a glance
| Instruments and gifts covered | Will devise of real or personal estate; separate trust-gift rule (IC 29-1-6-1(g); 30-4-2.1-7(b)). |
|---|---|
| Which devisees qualify | Will devisee must be testator's descendant; trust beneficiary must be settlor's descendant (IC 29-1-6-1(g); 30-4-2.1-7(b)). |
| Death or failure trigger | Will devisee dies during testator's lifetime, before or after will execution; trust beneficiary dies before settlor (IC 29-1-6-1(g); 30-4-2.1-7(b)). |
| Descendant survival period | Substitute descendant must survive testator or settlor; cited provisions state no fixed hour count (IC 29-1-6-1(g); 30-4-2.1-7(b)). |
| Who takes and how | Property vests as if deceased devisee or beneficiary survived and then died intestate (IC 29-1-6-1(g); 30-4-2.1-7(b)). |
| Class gifts | Will rule describes a devise to any descendant of testator; no distinct class-share formula in subsection (g) (IC 29-1-6-1(g)). |
| Failed gift and residue | Failed nonresiduary will devise enters residue; separate trust rule does the same for a trust devise (IC 29-1-6-1(g); 30-4-2.1-6). |
| Contrary intent and survival words | Will and trust interpretation rules yield to contrary intent in the instrument (IC 29-1-6-1; 30-4-2.1-1). |
| Alternative gifts and appointments | Contrary will intent controls construction; a will exercises a power of appointment only if it specifically indicates that intent (IC 29-1-6-1, (f)). |
| Trust and nonprobate reach | Trust gift to settlor's descendant has its own substitute-taker provision (IC 30-4-2.1-7(b)). |
Requirements one by one
A descendant's will gift
Under IC 29-1-6-1(g), the deceased devisee must be a descendant of the testator and leave a descendant who survives the testator. Death before or after the will was executed is covered. The property vests as if the devisee had survived the testator and then died intestate. The quoted subsection expressly includes children adopted during minority by the testator or the testator's descendants, and those adopted children's descendants.
Failed gifts and appointments
IC 29-1-6-1(g) sends a void, revoked, or lapsed devise outside the residuary clause into the residue. The same section's subsection (f) separately says a will exercises a power of appointment only when its terms specifically indicate that the testator intended to exercise it.
Trust gifts
The separate trust rule, IC 30-4-2.1-7(b), protects a gift to a descendant of the settlor who dies during the settlor's lifetime, including death before trust execution, and leaves a descendant surviving the settlor. The surviving descendant takes as if the beneficiary had survived and died intestate. IC 30-4-2.1-6 sends a failed trust devise outside the residue to the residuary beneficiary.
What trips people up
Both rules require a surviving descendant of the deceased beneficiary; neither quoted substitute-gift provision specifies an hour count. The will and trust chapters each begin by making their construction rules subject to contrary intent appearing in the instrument. A class designation or named backup therefore needs to be read in the actual instrument before applying the default.
Common questions
Does a devisee who died before the will was signed qualify? Yes, if the deceased devisee was a descendant of the testator and left a descendant surviving the testator; IC 29-1-6-1(g) expressly covers death before execution.
Does every failed devise go to the residue? The cited will and trust fallback clauses both address a devise not included in the residuary clause. IC 29-1-6-1(g) also preserves the specified descendant gift when its substitution conditions are met.
Statutes and sources
- IC 29-1-6-1 and IC 30-4-2.1-1, -6, and -7. The source fields above contain verbatim official excerpts, chapter URLs, and access dates.
Source links
Every statute quoted above, linked, with the date we checked it.
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