As an estate planning practitioner, I have advocated the practice of periodically reviewing one’s estate plan in order to give due and current consideration to possible changes in a client’s family relationships and business circumstances.
These changes occur much more frequently than most people believe, and it is imperative that such a periodic review become a part of an individual’s routine.
One area of possible change that I would like to focus on is the specific bequest of an asset. Generally, under the law of most states, if one identifies a particular asset that is to be bequeathed to an individual, and during one’s lifetime that asset is transferred by the individual or is otherwise no longer a part of the estate of the deceased, then the bequest is considered to have been “adeemed”. What this means is that the person to whom the property was to have been given receives nothing.
The intended beneficiary of this asset may contest the ademption and seek to have the bequest replaced by property of like value; however, the intended beneficiary must prove that the deceased person did not intend that the bequest be adeemed. Faced with a voluntary transfer or sale of the property, the intended beneficiary certainly would have a difficult burden of proof. This rule of law may seem harsh, particularly where under the particular circumstances, it would not seem fair that the intended beneficiary would be deprived of a fair share of a father or mother’s estate, particularly where it appeared that at the time the Will was made, the decedent’s intent clearly was to make a fair distribution of his assets among his children or grandchildren. However, the statutory provision will be enforced absent strong evidence that the decedent did not intend to “revoke” the gift.