question.jpgIn Trusts and Estates

What happens if a will provides for a gift the testator didn’t own?

Sometimes a gift will be included in a will but when the person actually dies they may no longer own the property. This is particularly true if a lot of time has passed between when the will was executed and when the person dies. This situation is known as ademption, and the gift is said to fail. Generally, the heir to a failed gift gets nothing. For example, if I leave you my shares of Microsoft stock, but then sell those shares before I die, you would not be entitled to any gift during the probate of my will. However, some states do allow you to get any property that can be traced from the failed gift. In such a state, if you could show that a certain amount of money in my bank account came from my sale of the Microsoft stock (that is, you can trace a connection between the stock and the money), a court would give you that share of the money.