So your wealthy Grandmother leave you a beach house in Pompano Beach in her will but there is one problem she sold the property last year. What now? Can you claim a right to the proceeds in West Palm Beach probate court? It depends on whether or not the gift is subject to the laws of ademption. Do you know the rules? Check them out here for quick reference guide to the rules of ademption in West Palm Beach probate.
Ademption Generally
- Ademption refers to the failure of a gift or devise because it is no longer in the testator’s estate at the time of her death.
- This only applies to specific devises and bequeaths.
- Do you know what that means?
- A general devise / bequeath is something that reads “to my friend I leave ten thousand dollars”
- A specific devise would be if the testator left his ten thousand dollar rolex to his friend.
- Another example would be a promise of “ten thousand dollars to be made from the sale of my stock.”
- Ademption only applies to the last two, not the first which is a general devise.
Specific Devises
- A specific devise is one that can only be satisfied by receipt of a particular piece of property.
- If this property is not in the testator’s estate then it is adeemed.
- What happens then?
- The beneficiary in West Palm Beach takes nothing.
- In most states the testator’s intent will not be considered.
- So for example if someone devised to you “my Honda Accord so that my loving niece can have a safe reliable car to commute in” the probate court will look for the red Honda Accord and when it can’t find one the gift fails.
- Florida is different though!
- Florida courts will look into the testator’s intent especially when a guardian or other party such as testator’s spouse sold the property.
- So in the hypothetical above the Court may look and find that there was a blue Hyundai Elantra and a Formula One Dragster.
- The court may find that to match the testator’s intent, the blue Hyundai may be a good safe commuter car and thus the devise won’t fail.
- The Court is unlikely to find this though if only a race car was left in the estate at the time of testator’s death.
When Does Ademption Not Apply
- The doctrine does not apply to general and demonstrative legacies.
- A demonstrative legacy gives a dollar amount but specifies a particular asset as the source of payment.
- A general legacy just leaves a dollar amount.
- Check out the examples above, which one is a general and which is a demonstrative legacy can you spot them?
- Neither of these legacies will be adeemed rather the personal representative will sell other estate assets to get the money for the estate.
Other Special Cases
- Watch out if a guardian sells the goods that would have been adeemed because in Florida you may be entitled to any proceeds still owed on the sale!