What if I No Longer Own What I’ve Willed?

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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UPDATED: Dec 16, 2019

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Suppose you leave your 2003 Ford Mustang to your son in your will, but then you sell. To avoid this kind of situation, you need to keep your will up to date. Any time you make a major change in what you own, you should change your will, too. willing property that you do not own can lead to complications and the rules governing this problem vary considerably from state to state.

If you have left someone a specific piece of property, for example, a Renoir painting or a 2003 Ford Mustang, but you no longer own that property when you die, the beneficiary is out of luck. Technically, this is called ademption but people who don’t inherit the property usually call it something else.

If you leave cash gifts but you don’t leave money to cover them, a proportionate reduction, called abatement, is made. If you fail to include in your will instructions about what to do if a cash shortfall occurs, state laws govern how the executor must proceed. Some states require that property first be taken from the assets that remain, after all specific gifts are made, which are then sold so cash gifts can be paid. Other states require a pro rata reduction of cash gifts without the sale of specific property. Since states’ laws do vary, you should check with an estate attorney in your state.

Examples:

  1. Residuary
    Steven leaves $20,000 each to four beneficiaries, Dave, Robin, Sal and Stuart. When he dies, only $40,000 cash remains in his estate, but Steven’s estate also contains a house that is left to the residuary beneficiary, Beverly. To give each beneficiary the full amount of cash gift, the house must be sold and the residuary beneficiary, Beverly, gets what is left after all cash gifts are paid. 
  2. Pro-Rata
    Jessica leaves cash gifts of $20,000 to each of three friends, Katie, John and Mary. But when she dies, only $30,000 is left in her estate. The three beneficiaries each receive $10,000.

The bottom line: Make a new will whenever changes in what you own affect your gift-giving plans. Don’t leave more than you own.

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