In this article, we will answer, “What is ademption in probate cases in Illinois?” Our Illinois
probate lawyers will address:
Most testators take one of two approaches when devising gifts in their will.
The first is to leave each heir a designated percentage. For example, a testator could award each of their five children 20% of the value of their estate upon their death. Or they could award 50% of the value to their spouse and divide the remaining 50% equally or as desired between their children.
The second approach is more specific and requires the testator to leave each heir a specific gift. This could be a physical item, like a home, vehicle, or piece of jewelry, or a monetary gift (e.g. $10,000).
Both approaches are legally acceptable. But when a testator chooses the second approach, ademption is a possibility. In such a circumstance, an heir is denied a gift because it is no longer part of a testator’s estate at the time of their death.
There are two ways ademption can occur.
The first is by satisfaction, or when an heir receives their gift(s) before the testator passes away.
The second is by extinction. In an ademption by extinction, the gift in question has been sold, lost, or destroyed, or is otherwise no longer available.
For example, a mother writes in her will that her daughter is to receive her wedding ring as an inheritance. But large financial hurdles later in life force the mother to sell most of her valuables, including the ring. She doesn’t tell anyone, nor does she update her will before her passing. While attempting to settle her estate, the wedding ring cannot be located. In this situation, the daughter is a victim of ademption by extinction.
Every case of ademption is unique. Illinois courts often find that an heir is still entitled to equivalent funds in relation to the value of the item in question. However, this can only be enforced when the actions of someone other than the decedent led to the ademption.
Careful estate planning can help prevent cases of ademption. A will should always be updated after a major life event, such as selling property or relocating funds. And when writing the terms of their will, a testator should be considerate of their wording when leaving specific gifts.
For example, saying that they wish to leave their home at 123 Main Street could lead to ademption should they move and pass away before updating their will. Instead, the gift could be worded the home I own at my death. This erases confusion and the risk of ademption.
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