But if the sister was alive when the Will was executed and the sister died before the Will-maker died, then the gift may or may not lapse depending on several factors.

Like many states, California has what is known as an “anti-lapse” statute (California Probate Code §21110; see below). The problem addressed by anti-lapse statutes is lapse (i.e. invalidity). The purpose of California’s anti-lapse statute is to accomplish what the Will-maker may have wanted given the unforeseen death of the beneficiary. When California’s anti-lapse statute applies, the statute passes the property to the issue, heirs, or devisees of the predeceased beneficiary, instead of to the residuary legatees or heirs of the Will-maker.

The problem is a fairly common one because there is often a considerable period of time between the execution of a will and the death of the testator, during which time an intended beneficiary or some of the intended beneficiaries may die. Proper planning and drafting to provide alternative takers can avoid the problem, however, nott all lawyers are careful drafters and not all testators consult lawyers. This result may be exacerbated by many persons using online Will preparation services. For those DIY persons, some are either unaware of the potential problem or they are unable or unwilling to anticipate and to provide for the eventuality that one or more of their intended beneficiaries will predecease them.

Like other states, California has a statutory solution. Under California Probate Code §21110, if a named beneficiary dies before the Will-maker, the heirs (i.e. kindred/related by consanguinity) of the deceased beneficiary may, based on several requirements, inherit the gift in his/or her place. There are important conditions to California’s anti-lapse statute.

1. The first requirement is that a gift can only pass to a “person who is a kindred of” the Will-maker or the Will-maker’s spouse. If the Will-maker left a $5,000 gift to a non related friend, that money would not pass to the friend’s children under the anti-lapse statute.
2. The second requirement is that the Will can expressly provide otherwise.

   For example, if a Will states, “I leave $5,000 to my sister if she shall survive me, otherwise this gift shall lapse,” then if your sister dies before you, her issue (kindred) would not automatically receive the $5,000 under the anti-lapse statute.

   Further, a Will may state that a beneficiary must survive the Will-maker by a specific period of time.

   Or, a Will might say, “I leave $5,000 to my sister, provided that she survives me by at least 60 days.” Such language is also sufficient to override the anti-lapse statute.

In summary, California Probate Code §21110 only applies if the deceased beneficiary’s heirs are blood related to the person who made the original Will or to the person who made the original Will’s spouse. The anti-lapse statute is intended to keep property in the family; it assumes that the beneficiary who died was related to the testator. If the beneficiary who has died left all his/her property to a non-family member in his/her Will, then the inheritance that he/she cannot accept, because he/she has passed away, returns back to the original person who made the original Will’s estate.

If a Will does not specify who will receive some or all of the property of a deceased beneficiary and the above described California anti-lapse statute does not apply, the property gifted to the predeceased beneficiary will likely pass under California’s "intestate succession" laws attributable to the Will-maker, just as if there was no Will.