It is not uncommon for a will or trust to make a specific gift to an individual that they do not still own when they die. "Ademption" is the legal term that describes this situation and the rule that there is an effective revocation of a specific gift in a will as a result of it's not being in the testator's estate at death.
Ademption occurrs in two different ways. "Ademption by Extinction" occurs if the gift has been transferred to a third party. For example, the will leaves the Decedent's grand piano to her daughter but that piano had been previously sold when the decedent downsized or was given to a neighborhood school.
Ademption by Satisfaction occurs if the gift has been advanced already to the person called to receive it. For example, the daughter was given the grand piano five years ago and has it in her living room.
In our experience Ademption by Satisfaction causes little problem when administering estates. Most people accept the rule that, if they have already received the gift, there isn't a problem. Occasionally people have argued that they should receive cash in equivalent value at the time of death. The law simply doesn't support such a claim.
Ademption by Extinction is slightly more problematic. It is often unclear in such cases if the Decedent really intended to reduce the gift to the beneficiary when they made the transfer. While such issues arise whenever there is a transfer, it is even more problematic in our experience where the gift had already been transferred to another family member. If you are handling an estate or trust with a significant Ademption by Extinction issue it may be wise to consult an attorney. An attorney can assist you in conducting a good due diligence investigation into how, when, and why the asset was transferred and what is known about the intent of the Decedent and let you know what your rights and obligations might be. If you come to the conclusion that it would have been the Decedent's intent to give the beneficiary an equivalent gift that can be addressed, if all parties agree, in Washington State by a TEDRA Agreement. Reaching such an agreement can be facilitated mediation or collaborative law if need be.
If you have questions about Ademption, please contact us at email@example.com or (206) 459-1908.