The word for today is “ademption.” If a testator makes a will and leaves specific property to someone and then later sells or otherwise disposes of the property, the law says that the gift is “adeemed.” In other words, the person to whom it was given doesn’t get anything.
Ademption applies to specific gifts such as “I give my nephew my 10,000 shares of Exxon stock.” If the testator sells the shares before he dies or if he gives them away, then the person to whom he gave them in the will gets nothing. That’s assuming that the only thing the person was due under the will was the 10,000 shares of stock.
Some of the legal issues surrounding the question of ademption are:
- What if the testator sells the property but the proceeds from the sale can be easily traced? Does the person to whom the property was given in the will get the proceeds?
- What if the property changes form such as a gift of “my 10,000 shares of Mobil Oil” where Mobil Oil is taken over by Exxon before the testator’s death and the shares are now 5,000 shares of Exxon?
- What if the testator becomes incapacitated and his guardian or someone who has a power of attorney disposes of the property?
- What if the testator has 20,000 shares of Exxon and before he dies he gives you 10,000 shares? Do you get anything under the will? What if he gives you 10,000 shares and sends a letter saying that these shares are your part of his estate?
Contested Probate issues include much more than just will contest. Many times there is no problem with the will but the way the will is administered by the Administratoror Executoris the issue. If you are being deprived of your inheritance, please visit TexasInheritance.Comand let us help you.
UPDATE: In a recent case, the wife left her husband "our homestead." At the time of her death, a divorce was pending, although not final. The parties were living separately. They had agreed in a mediated settlement that wife would receive the house in the divorce. The court ruled that the husband did not get "our homestead" because the gift had adeemed. It no longer existed since the parties were living separately.
UPDATE: In a recent case, the testator gave his house to a beneficiary. Before he died, the testator entered into a contract to sell the house. He died before the closing. The court held that the gift to the beneficiary adeemed since the testator no longer owned the home. The court ruled that once he signed the contract to sell it, he just owned the rights under the contract, not the home. Therefore, the gift of the home to the beneficiary adeemed.
Update: In a 2017 case, a grandmother gave her "farm lands, and pasture lands owned by me at the time of my death" to her grandchildren, share and share alike. She gave the rest of her estate to one of the three grandchildren. Later, she sold the farm lands but retained one half of the mineral interest which were re conveyed by the buyer. Years and Years later when, I assume, oil and gas were found on the property a dispute arose. The descendants of the one favored grandchild said they owned the mineral interest since their ancestor was the one favored grandchild who received everything else under the will. They claimed that the sale of the "farm lands, and pasture lands" adeemed the gift to all three and just left ownership of the minerals in the favored grandchild. The appeals court disagreed. It found that ademption is pro tonto (only the property that the testator no longer owns is adeemed.) Since the testator retained the mineral interest which was part of the original "farm lands, and pasture lands owned by me", the minerals were owned by all three grandchildren. 13-15-00267-CV.
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This page is general information about Texas law. It is not legal advice about your situation, and reading it does not create an attorney–client relationship. These matters turn heavily on specific facts and specific dates, and the law has exceptions this page does not cover. You should not take, or refrain from taking, any action based on this page. Discuss your circumstances with an attorney who can advise you on them.