Like a lot of areas of the law, estate planning to some extent has developed its own lingo to describe various rules and concepts quickly and efficiently.
It is important for those who are in the midst of estate planning to understand what some of these terms mean and how the concepts they signify can affect one’s estate plan. If a Sacramento resident does not fully understand a term he hears, he should ask an estate planning attorney.
With respect to wills, two of these unusual terms are abatement and ademption. They both apply when, for whatever reason, a person who made the will does not have an asset they thought they would have in their estate or, overall, has less overall value in their estate than what they had planned.
Ademption is a legal doctrine that says that a provision in a will can be ignored if it attempts to transfer a piece of property that the estate does not rightfully own. An example would be that if the will purports to leave a person a boat, but the drafter did not own a boat at the time of her death, then that provision of the will gets ignored.
The related concept of will abatement applies in slightly different circumstances. Abatement applies when the will attempts to dispose of money or other liquid funds, but there are not enough overall funds to pay everyone what was intended.
The key to understanding abatement is that it sets up a hierarchy or priorities as to which beneficiaries get paid first. Generally speaking, a court is going to award what is called specific bequests first and divide up what is left.
So, if the will specifically leaves an individual $20,000 and then splits whatever is left with three other individuals, the first person gets the $20,000 even if the other three only wind up with $5,000 each because the drafter thought he had $80,000 in assets but actually had on $35,000.