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Thursday, November 13, 2014

Avoid Accidentally Cutting Someone out of your Will -- Ademption and Abatement Explained

Some wills lump together all property in the estate, and simply divide it amongst the beneficiaries.  An example would be a clause in a will saying, "I give all my property, real and personal, to my two children, to be divided in equal shares, per stripes."  In contrast, other wills break out specific pieces of property, which is known as making specific devises.  For example, "I give my 2014 Ford Fusion to my son, John; I give my house at 123 Main St, Naperville, IL, to my daughter, Erica."  However, making specific devises carries risks, especially to those who do not frequently review their estate plans:

The first major risk associated with making specific devises arises if the property referenced in the will no longer exists at your death.  Imagine that years after you write your will, you sell your Ford Fusion or lose your wedding ring.   In those cases, the doctrine of ademption could apply, depending on state law.  Ademption means that the property named in the will is no longer in the possession of your estate, so the gift fails.  In other words, a beneficiary named in your will may be entirely cut out because of a legal doctrine.  The beneficiary who was cut out may end up arguing that you would have intended him or her to receive a substitute piece of property, even though the original gift failed.  Imagine the family strife and litigation such a fight could cause.

A second risk associated with making specific devises arises if you end up dying with less overall wealth than you anticipated.  Let's say when you write your will, you have $1 million in savings.  Your will makes specific devises of $10,000 to the humane society, $10,000 to your best friend Michael, and the rest (the residuary estate) to your children.  At the time you draft your will, you expect your children will receive the remaining $980,000 of your estate, the vast majority of your wealth.

Imagine that due to some expensive medical condition, you die with only $20,000 in your estate.  Under the doctrine of abatement, state law may presume that the highest priority in your estate plan was making specific devises ($10,000 to the humane society, and $10,000 to your friend Michael).  The residuary devise (all remaining property) to your children is secondary to the specific devises.  So, even though you may have intended for your children to receive $980,000, they may end up receiving nothing because they are lower on the priority list than the non-relatives who received specific devises.  Again, the beneficiaries who are shortchanged may feel slighted, or commence expensive litigation against other family members arguing your intent was not met.

An experienced estate planning attorney can help you avoid ademption or abatement problems in your estate.


Published by Ian Holzhauer, Esq. of Nagle Obarski PC in Naperville, IL.  


Note:  The information above is not legal advice and is not the basis of an attorney-client relationship.  If you need assistance, you can hire an attorney to assist you with your individual legal needs. 



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