What is Ademption in a Washington Probate?
Sometimes, a Will provides a bequest of specific property to a beneficiary. For example, “I give, devise, and bequeath my 1965 Ford Mustang to my uncle, John Smith.” Sometimes, such a bequest cannot be fulfilled because the item of property is no longer owned by the maker of the Will at the time of their death. This could happen because the maker of the Will gave away or sold the property during their lifetime, the property was destroyed, the property was stolen, or any number of reasons.
In such a case, the bequest is ineffective. The doctrine of ademption provides that a bequest of specific property in a Will is revoked if the maker of the Will no longer owns the property at the time of their death. The bequest is “adeemed by extinction” if the maker of the Will no longer owns the property at the time of their death. The bequest is “adeemed by satisfaction” if the maker of the Will transfers the property to the intended beneficiary under the Will during the lifetime of the maker of the Will. In Washington, the doctrine of ademption does not apply to transfers of property that occurred prior to the making of the Will. In the example above, assume I sold the Mustang in year 1. In year 2, I made my Will and, for some reason, it included the bequest quoted above. In year 3, I died. Although the Mustang was not owned by me at the time of my death, the doctrine of ademption would not apply in Washington because the Mustang was not my property at the time I made the Will. In other states, the result might be different.
Generally, application of the doctrine of ademption means that any proceeds from the transfer of the property do not replace the property for purposes of the Will. For example, assume I sold the Mustang for cash, I deposited the cash into an account that was used solely to hold the proceeds from the sale of the Mustang, and the account still held those proceeds at the time of my death. Based on the language of the bequest above, my uncle would not receive the proceeds. If the language of the bequest had included the proceeds of any transfer of the Mustang, my uncle would receive the proceeds under the assumptions made above. Washington law also provides a limited exception to the general rule. If I had contracted to sell the Mustang prior to my death, but the sale had not closed, my uncle would have acquired the Mustang upon my death, but it would have been subject to the right of the buyer to complete the sale. My uncle would most likely be entitled to the proceeds of the sale.
If you need assistance with these issues, contact Per Oscarsson or one of the other attorneys in Beresford Booth’s Estate Planning and Probate Group.