Will Anti-Lapse and Substitute Gifts in Vermont
At a glance
| Instruments and gifts covered | Testamentary gift to a child or other kindred (§ 335). |
|---|---|
| Which devisees qualify | Testator's child or other kindred (§ 335). |
| Death or failure trigger | Designated beneficiary dies before testator; 120-hour failure is deemed predecease for taking under a will (§§ 335, 337). |
| Descendant survival period | Descendants survive testator; 120-hour will-beneficiary default unless will provides otherwise or escheat exception applies (§§ 335, 337). |
| Who takes and how | Surviving descendants take what the named beneficiary would have taken; no separate split formula stated (§ 335). |
| Class gifts | Testamentary-gift rule; § 335 gives no separate class-member formula. |
| Failed gift and residue | Substitution applies to a testamentary gift; property not effectively disposed of by will passes by intestacy (§§ 335, 301(a)). |
| Contrary intent and survival words | A different disposition required by the will controls; will may alter the 120-hour rule (§§ 335, 337). |
| Alternative gifts and appointments | Different will disposition controls; § 335 supplies no separate appointment or alternative-gift formula. |
| Trust and nonprobate reach | § 335 addresses testamentary gifts; it states no trust or nonprobate extension. |
Requirements one by one
Protected beneficiary and substitute takers
§ 335 applies when a testamentary gift is made to the testator's child or other kindred and the designated beneficiary dies before the testator. The beneficiary must leave at least one descendant who survives the testator. Those descendants take the gift the beneficiary would have taken if alive. The section does not prescribe a separate method for splitting that gift among multiple descendants or for determining class membership.
Survival and a different will disposition
§ 337 generally treats an individual who does not outlive the decedent by 120 hours as having predeceased the decedent when taking under the will. Survival for that period must be established by clear and convincing evidence. The will can provide otherwise, and the section does not apply if it would produce escheat. Section 335 also yields when the will requires a different disposition.
Failed property outside an effective will gift
For property the will does not effectively dispose of, § 301(a) directs intestate succession to the decedent's heirs, subject to the will's modifications. That fallback does not itself decide whether a particular residuary or alternative gift is effective.
What trips people up
The statute protects a child or other kindred, not every named beneficiary (§ 335). The separate 120-hour rule can affect whether the named beneficiary or a substitute descendant is treated as surviving; its will and escheat exceptions matter (§ 337).
Common questions
Does the statute name a substitute if the beneficiary leaves no descendant who survives the testator? Section 335 requires at least one such descendant; § 301(a) supplies the fallback for estate property not effectively disposed of by will.
Does an ordinary trust or beneficiary designation receive this substitute gift? Section 335 speaks of a testamentary gift. It does not state a trust or nonprobate extension.
Statutes and sources
- 14 V.S.A. §§ 301, 335 and 337. Verbatim official excerpts, the chapter URL, and access dates appear in the source fields above.
Source links
Every statute quoted above, linked, with the date we checked it.
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