Ademption in Illinois Probate: When Gifts in Wills Disappear

When a testator (the person who made a will) bequeaths a specific item – like a family heirloom, a car, or a piece of real estate – under certain circumstances, that gift may “adeem,” meaning it no longer exists in the estate at death. Here’s what you need to know about ademption in Illinois probate.

What Is Ademption?

• Ademption by extinction occurs when the specific gift is no longer part of the estate – perhaps it was sold, destroyed, or given away before death. 
• Ademption by satisfaction happens if the testator gave the gift to the beneficiary during their lifetime, effectively using it as an early inheritance. 
• Ademption applies only to specific bequests, not to general cash gifts or percentage-based inheritances.

Illinois Law on Ademption: Intent Matters

While many states follow a strict “identity” rule – if the item isn’t there, the gift fails – Illinois courts take a more nuanced approach:

• Courts look at the intent of the testator. If the item was no longer part of the estate due to the testator’s actions and intent, the gift is likely adeemed. 
• But if the property was sold or lost without the testator’s intent – such as by a legal guardian or conservator – the beneficiary may still have a right to proceeds or a replacement. 
• In one case, insurance proceeds from a fire-destroyed home were awarded to the named beneficiary, showing that ademption doesn’t always apply when property disappears involuntarily.

Special Rules for Real Estate

Illinois law treats real estate gifts a little differently:

• Under the Illinois Probate Act (755 ILCS 5/4‑8), if the testator had a binding contract to sell the property before death, the intended beneficiary (called the “devisee”) is entitled to the sale proceeds. 
• This is based on the principle of equitable conversion – meaning the property is treated as money once the sale is in progress, and that value transfers to the intended heir. 

Preventing Ademption Through Clear Drafting

Estate planners and individuals making a will can avoid ademption issues by:

• Adding language like:
  
  “I give my 2015 Honda Accord, if owned by me at my death, to my son.” 
• Avoiding overly specific descriptions for property that may be sold or changed. 
• Regularly reviewing and updating their wills to reflect changes in their assets.

What Beneficiaries Should Do

If a specific gift mentioned in a will is no longer available:

1. Check the will’s wording. Is it a specific or general bequest? 
2. Investigate why the item is gone. Did the testator sell it intentionally or was it lost by someone else? 
3. Seek legal advice. In some cases, the beneficiary may be entitled to a replacement value or sale proceeds. 
4. Review the sale of real estate. If it was under contract before the testator died, Illinois law protects the devisee’s right to proceeds.

Summary Table

Scenario	Illinois Result
Testator sells specific property	Ademption applies unless sale wasn’t intentional
Property lost or destroyed	No ademption if loss wasn’t testator’s intent
Gift still in estate at death	Gift goes to beneficiary
Real estate under contract	Beneficiary may receive sale proceeds

❓Frequently Asked Questions About Ademption in Illinois Probate

Q: What is the difference between a specific and general bequest?
A: A specific bequest refers to a particular item – like a car or jewelry – identified in the will. A general bequest is a gift not tied to a specific asset, such as “$10,000 to my niece.” Ademption applies only to specific bequests.

Q: If a gift is adeemed, does the beneficiary get anything?
A: Typically, no. If the specific item no longer exists and the testator intentionally disposed of it, the gift is considered adeemed and fails. But Illinois law may allow a substitute or value if the gift was lost through no fault of the testator.

Q: Does ademption apply to real estate?
A: Yes, but Illinois protects beneficiaries if the property was under contract at death. In that case, the sale proceeds may pass to the person named in the will.

Q: Can ademption be avoided?
A: Yes. Careful estate planning – using flexible language and updating the will regularly – can help prevent unintentional ademption.

Q: What happens if the testator replaced the item with a similar one?
A: Courts may allow the replacement to pass to the beneficiary if the intent was clearly to substitute it. This is a gray area that often requires legal interpretation.

Q: Who decides if ademption applies?
A: An Illinois probate court makes the final decision, based on the facts, the will, and the law.

Need Help With a Probate Issue?

At Estate and Probate Legal Group in Oak Brook, Illinois, we guide families through complex estate matters with care and clarity. If you’re concerned about a missing gift in a will – or need help administering an estate – contact us today for a consultation. 

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