Ademption

Wills is a very heavily tested subject on the MEE, the essay portion of the Uniform Bar Exam. And, although far more limited, it also shows up (in Property questions) on the MBE.  One topic that appears on the MBE is ademption.

Ademption is implicated when a testator leaves property in a will but the property is no longer in the testator's estate at the time of death. What to do in such a situation?

First is to note that ademption only applies to specific gifts in a will. A specific gift is a gift that can only be satisfied by receipt of the specific property described in the will. If such a gift is no longer in the testator's estate at the time of death, the gift is adeemed and the beneficiary who was supposed to receive the gift receives nothing.  If, however, some of the gift remains (for example, a tract of land is left to the beneficiary and some of the land is sold prior to the testator's death), then the beneficiary will receive whatever remains.

Also tested are gifts that are not adeemed. For example, a general gift is a gift in a will of a specific dollar amount. If testator leaves a dollar amount to a beneficiary in a will and there is not enough cash in the estate at the time of death to satisfy that gift, that general gift of cash is not adeemed; rather,  the gift will be satisfied by selling other assets.

There are a few additional important points to keep in mind: assume a specific gift of land is no longer in the estate at the time of testator's death. Although the gift is adeemed, the beneficiary of that gift may be entitled to proceeds from the sale of that land if the land sale contract was executory at the time testator died. The beneficiary may also be entitled to casualty insurance proceeds for loss of personal property that was left to the beneficiary in a will if the proceeds are paid after the testator's death. Lastly, a condemnation award (if land is condemned after testator dies) may go to the beneficiary in the will who was supposed to receive the condemned land as a specific gift.