Consider the following hypothetical: Testator executes a will (signs, has witnessed, etc.) that specifically devises (bequeaths pre-UPC) his Rolls-Royce to X, a named individual. Period. Testator’s intention is that if X predeceases testator, testator’s Rolls-Royce shall become an asset of X’s probate estate upon testator’s death.

The will’s limitations. Under classic wills doctrine, however, should X predecease the testator the devise upon the testator’s death will instead lapse (fail), with the subject property either passing via the will’s residue clause, or, in the absence of such a clause, via intestate succession to the testator’s heirs at law. This is because during the testator’s lifetime X’s interest in the Rolls-Royce was a mere expectancy, which is not a property interest. An expectancy is not even a future interest in property. Recall that a will is ambulatory/revocable. And being testamentary, it speaks only at the testator’s death. Since X possesses no property interest (vested, contingent, or otherwise) in the Rolls-Royce while the testator is alive, no property rights in the Rolls-Royce can accrue to X’s executor (personal representative), qua executor (personal representative), at X’s death should X predecease the testator. For that reason, a devise to “X or [into] X’s probate estate should X predecease me” also will not fly.

Now the devise could have been expanded at the drafting stage to specify alternate direct takers of the Rolls-Royce upon the testator’s death should X predecease the testator. Or should X predecease testator, upon the testator’s death some antilapse statute might kick in and supply alternate direct takers, possibly X’s issue should he have any at the time of the testator’s death. But our testator is not interested in supplying, or having the state supply, alternate direct takers in the event X predeceases. The testator wants the Rolls-Royce eventually to become an actual asset of X’s probate estate.

The revocable inter vivos trust to the rescue. The revocable inter vivos trust is tailor-made for getting vested property rights in the Rolls-Royce into the hands of X while X is alive, while at the same time allowing the testator (hereinafter settlor) to retrieve those rights while the settlor is alive. The process is simple. Settlor establishes a revocable inter vivos trust and transfers legal title to the Rolls- Royce to the trustee. The trust’s terms provide that upon the death of the settlor title to the Rolls-Royce shall pass outright and free of trust from the trustee to X free of any survivorship preconditions. Period. That X is a named individual alive when the trustee takes title is critical. See appendix below. Any trust related UPC antilapse provisions that might otherwise be applicable are expressly negated. See UPC §2-707; Loring and Rounds: A Trustee’s Handbook (2023) §8.15.55. In other words, grant to X ab initio via the trust’s terms a “vested (transmissible) contingent equitable remainder” or a “vested equitable remainder subject to divestment.” As to the former property interest, the primary condition precedent is the non-exercise of the settlor’s right of revocation. As to the latter property interest, the primary condition subsequent is that the right is exercised. These two vested equitable property interests are explained and compared in §8.30 of Loring and Rounds: A Trustee’s Handbook (2023), which section is reproduced in the appendix below. See especially footnote 26 in the appendix. The Handbook is available for purchase at: https://law-store.wolterskluwer.com/s/product/loring-roundstrustees-hanbook-2023e/01t4R00000Ojr97QAB.