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Learning Outcomes

This article explains the doctrine of ademption and its operation in title transfer under wills, including:

Identifying when a gift is specific, general, demonstrative, or residuary, and predicting which gifts are vulnerable to ademption on the MBE.
Describing how ademption by extinction operates when a specifically devised asset has been sold, destroyed, replaced, or transformed before the testator’s death.
Distinguishing ademption by extinction from ademption by satisfaction, including the required intent and writing for lifetime transfers to reduce or eliminate a testamentary gift.
Applying partial ademption principles when only part of a specifically devised asset is disposed of and determining what, if anything, the devisee still receives.
Analyzing the effect of executory contracts for sale, insurance proceeds, and condemnation awards, and deciding when modern statutes allow the devisee to trace into proceeds or substitute property.
Evaluating how incapacity, and sales or transfers by guardians, conservators, and agents with durable powers of attorney, alter the traditional ademption result.
Systematically approaching MBE-style fact patterns by classifying the gift, asking who changed the property and when, and selecting the answer that best reflects modern majority and UPC-based rules.

MBE Syllabus

For the MBE, you are required to understand how ademption affects the transfer of title to property at death, with a focus on the following syllabus points:

The ambulatory nature of wills and what it means for changes in property between execution and death.
Definitions and distinctions among specific devises, specific bequests, general legacies, demonstrative legacies, and residuary gifts.
Ademption by extinction of specifically devised or bequeathed property.
Situations in which ademption does not apply (e.g., general and demonstrative legacies).
Modern statutory and common-law exceptions (e.g., sale by guardian or agent, executory contracts for sale, insurance proceeds, and condemnation awards).
Partial ademption when only part of a specifically devised asset is disposed of before death.
Ademption by satisfaction as the testamentary analogue of advancement.
Exam-focused application, including classification of gifts and tracing of property or proceeds.

Test Your Knowledge

Attempt these questions before reading this article. If you find some difficult or cannot remember the answers, remember to look more closely at that area during your revision.

A testator leaves "my car to my niece." Before death, the testator sells the car and does not own any car at death. What is the likely result?
1. The niece receives the sale proceeds.
2. The niece receives a different car from the estate.
3. The gift fails by ademption, and the niece receives nothing.
4. The niece receives an equivalent cash amount from the estate.
Which of the following gifts is most likely to be subject to ademption by extinction?
1. A general legacy of $10,000.
2. A devise of "my house at 123 Main Street."
3. A demonstrative legacy of $5,000 from the sale of stock.
4. A residuary gift of "all the rest of my estate."
If a testator's court-appointed guardian sells specifically devised property while the testator is incapacitated, what is the usual effect under modern law?
1. The devisee takes nothing.
2. The devisee may claim the sale proceeds or traceable substitute property.
3. The devisee receives a different asset selected by the executor.
4. The devisee must sue the guardian to obtain any recovery.

Introduction

Ademption is a doctrine that determines what happens when property specifically mentioned in a will is not part of the testator's estate at death. Because a will is ambulatory—it has no effect until the testator dies and can be changed up to that point—assets described in the will may be sold, destroyed, given away, or transformed before death. This can directly affect who acquires title to the property at death.

Understanding ademption is essential for the MBE, especially in questions involving changes to a testator’s assets between the execution of the will and death. You must be ready to track not only what the will says, but also what the testator actually owns at death and whether proceeds or substitute property follow the original beneficiary.

Key Term: Ademption
The failure or reduction of a testamentary gift because the specifically described property is no longer in the testator's estate at death, or has already been given during life with intent to satisfy the gift in the will.

There are two main forms:

Ademption by extinction: the specific item is gone from the estate at death.
Ademption by satisfaction: the testator satisfies the gift during life by giving the same property (or its value) to the beneficiary, with the required intent.

This article focuses primarily on ademption by extinction, with a later section on ademption by satisfaction.

Types of Testamentary Gifts

Wills can make several types of gifts, but ademption primarily concerns specific devises and specific bequests.

Key Term: Specific Devise
A gift in a will of a particular, identified item of real property (e.g., "my house at 456 Oak Street to my brother").

Key Term: General Legacy
A gift of money or property not limited to any particular asset (e.g., "$10,000 to my daughter").

Key Term: Demonstrative Legacy
A gift of a certain amount of money or property to be paid from a specific source (e.g., "$5,000 from my Apple stock to my nephew").

Key Term: Residuary Gift
A gift of all property remaining in the estate after payment of debts, expenses, and satisfaction of all specific, general, and demonstrative gifts (e.g., "all the rest, residue, and remainder of my estate to my spouse").

On the MBE, the classification of a gift is the critical first step:

Specific gifts are vulnerable to ademption by extinction.
General and demonstrative gifts are normally not subject to ademption; they are satisfied from other estate assets if the named source is absent or insufficient.
Residuary gifts absorb whatever is left, including failed gifts that fall into the residue, unless a statute or contrary will provision applies.

Borderline classifications are tested frequently. Consider:

"100 shares of X Corp to A" (often treated as a general legacy; A gets shares or their value even if the testator sold those particular certificates).
"my 100 shares of X Corp held in my brokerage account at Y Bank to A" (more likely a specific bequest; if those particular shares are no longer in the account, ademption issues arise).

Correct classification controls whether you even move to an ademption analysis.

The Doctrine of Ademption

Ademption occurs when specifically devised or bequeathed property is not part of the estate at the testator’s death.

Key Term: Ademption by Extinction
The failure of a specific gift because the specifically identified property is no longer owned by the testator at death; the gift is usually not replaced by other property.

If a will leaves "my car to my niece," but the testator sells the car before death and does not own one at death, the gift is adeemed by extinction. The niece receives nothing unless an exception applies or the will provides otherwise.

Two important points for the exam:

Ademption focuses on what the testator owns at death, not what was owned when the will was executed.
The reason the property is gone (sale, gift, destruction) often does not matter under the traditional rule, but it matters under some modern statutory exceptions, especially when the change was made by someone other than the testator.

Key Term: Equitable Conversion
A doctrine under which, once a binding contract for the sale of land is formed, equity treats the seller’s interest as personal property (the right to the purchase price) and the buyer’s interest as real property.

Equitable conversion plays an important role in ademption where specifically devised real property is placed under a contract of sale before the testator’s death.

How Ademption by Extinction Works

If a will leaves "my car to my niece," but the testator sells the car before death and does not own one at death, the gift is adeemed. The niece receives nothing unless an exception applies.

Ademption applies only to specific devises or specific bequests.
General and demonstrative legacies are not adeemed—the beneficiary receives the value from other estate assets.

Exam angle: The MBE expects you to classify the gift first. If it is general or demonstrative, you usually stop there: no ademption by extinction.

Ademption and General or Demonstrative Gifts

Ademption does not apply unless the gift mentions specific property that can be satisfied only by delivery of that item. A bequest of "$10,000," or even "$10,000 to be paid out of the sale of my IBM stock," is not subject to ademption by extinction. It is:

General if no particular source is mentioned.
Demonstrative if a particular fund is named as the preferred source.

If the specific fund is missing or insufficient, the balance is paid from other estate assets.

Worked Example 1.1

A testator's will states: "I leave my painting by Monet to my friend, Sam." Before death, the testator sells the painting and does not own any Monet paintings at death. What does Sam receive?

Answer:
Sam receives nothing. The gift is a specific devise (or specific bequest of personal property), and since the Monet painting is not in the estate at death, the gift is adeemed by extinction. The sale proceeds do not go to Sam unless the will or a statute says otherwise.

Worked Example 1.2

A testator's will says: "I leave $10,000 to my daughter, to be paid from my savings account at First Bank." The testator closes the account before death, but has sufficient funds elsewhere. What does the daughter receive?

Answer:
The daughter receives $10,000 from other estate assets. This is a demonstrative legacy, not a specific devise, so ademption does not apply. If the named account is empty or closed, the personal representative satisfies the $10,000 from the general estate.

Partial Ademption

Sometimes the testator disposes of only part of specifically devised property before death.

Key Term: Partial Ademption
The failure of a specific gift only to the extent that part of the specifically identified property is no longer in the estate at death.

If the testator sells or gives away part of the specifically devised asset, only that portion is adeemed; the remainder still passes to the devisee.

Worked Example 1.3

T’s will devises “my 500 shares of X Corp stock to my sister.” Before death, T sells 200 shares but still owns 300 shares at death. What does the sister receive?

Answer:
Only partial ademption has occurred. The gift is specific as to the 500 shares. Because 200 have been sold, that portion is adeemed; the sister takes the remaining 300 shares. She does not receive the sale proceeds for the 200 shares unless the will or a statute grants that right.

Ademption and Executory Contracts for Sale of Land

A frequent MBE scenario involves a testator who devises specific real property and later enters into a binding contract to sell it.

Traditionally, under equitable conversion, the testator’s interest in the land was treated as personal property (the right to the purchase price), so the specific devise of land was considered adeemed. The devisee took nothing.

Modern law, influenced by the Uniform Probate Code (UPC § 2‑606) and many state statutes, reverses that result for wills executed in those jurisdictions:

When property subject to a specific devise is under contract of sale at the testator’s death, the proceeds of the sale (when received) pass to the specific devisee as a substitution for the land itself.

Worked Example 1.4

T owns Blackacre and executes a will devising “Blackacre to my daughter Mary.” Before his death, T signs a binding contract to sell Blackacre to A. After T’s death, the contract is completed and A pays the purchase price to T’s estate. Who is entitled to the purchase price?

Answer:
Under modern statutes and the UPC approach, Mary is entitled to the purchase price as a substitute for Blackacre. There is no ademption by extinction; the specific devisee receives the proceeds traceable to the specifically devised property. Under the older common-law rule, the devise would have been adeemed and Mary would have taken nothing.

Key Term: Executory Contract of Sale
A binding contract to sell property that has been formed but not yet fully performed (e.g., the deed has not yet been delivered and the purchase price has not yet been paid).

Contracts and Incapacity

If the testator is incompetent when the property is placed under contract, and instead the contract is entered into by a guardian, attorney-in-fact, or other representative, courts and modern statutes are especially reluctant to find ademption.

Key Term: Guardian or Conservator
A person or entity appointed by a court to manage the property or personal affairs of an incapacitated person.

When a guardian or conservator sells property that was specifically devised in the will, many states provide that the proceeds of the sale (and traceable investments of those proceeds) go to the specific devisee. The rationale is that the testator lacked capacity to change the estate plan.

Sales by Agents or Guardians

Modern statutes and courts recognize several exceptions where the beneficiary may still recover even though the specifically devised property itself is no longer owned by the testator.

Sale by Agent with Durable Power of Attorney: If an agent acting under a durable power of attorney sells specifically devised property while the testator is incapacitated, the specific devisee is usually entitled to the proceeds or substitute assets, at least to the extent they are traceable when the testator dies while still incapacitated.
Sale by Guardian or Conservator: As noted, sale by a court-appointed guardian during the testator’s incapacity generally does not cause ademption as to the beneficiary; the proceeds stand in for the property.

These rules are often codified and can vary, but the MBE generally follows the modern trend: no ademption where the change is made by a fiduciary during the testator’s incapacity.

Worked Example 1.5

A testator leaves "my house at 456 Oak Street to my brother." While the testator is incapacitated, a court-appointed guardian sells the house and reinvests the proceeds in a bond fund. The testator dies before regaining capacity. What is the likely result under modern law?

Answer:
Under modern statutes, the brother is entitled to the sale proceeds or the traceable substitute property (here, the bond fund) in place of the house. Because the sale was by a guardian during incapacity, it does not cause ademption by extinction as it would if the testator had voluntarily sold the property while competent.

Proceeds: Insurance and Condemnation Awards

Another set of ademption-related questions involves destruction or governmental taking of property before death.

Insurance Proceeds: If specifically devised property is damaged or destroyed before the testator's death but casualty insurance proceeds are paid after death, the beneficiary of the specific gift usually receives those proceeds.
Condemnation Awards: If property is condemned under eminent domain before death, but the condemnation award is paid after death, the specific devisee ordinarily receives that award.

These rules reflect a policy of treating the proceeds as a substitute for the property when the event (destruction or condemnation) occurred during the testator’s lifetime but the money was not yet received.

Worked Example 1.6

T’s will devises “my house at 10 Pine Street to my niece, Nora.” Shortly before T’s death, the house burns down. T’s fire insurance company sends a check to T’s estate after T’s death. Who is entitled to the insurance proceeds?

Answer:
Under modern law, Nora is entitled to the insurance proceeds traceable to the destroyed property. The specific devise does not adeem; the insurance check is treated as a replacement for the house.

Ademption by Satisfaction

Ademption can also occur when the testator gives the property (or its value) during life to the same beneficiary named in the will, intending that the lifetime gift satisfy all or part of the testamentary gift.

Key Term: Ademption by Satisfaction
The reduction or elimination of a testamentary gift because the testator gave the beneficiary the same property (or its value) during life, with the intent that the gift satisfy the testamentary provision.

Ademption by satisfaction is closely related to the doctrine of advancement in intestate succession. The key issues are:

Intent: Most modern statutes require a written statement by the testator (or sometimes a written acknowledgment by the beneficiary) indicating that the lifetime gift is in satisfaction of the testamentary gift.
Identity of the gift: The lifetime gift must be the same property or clearly a substitution for the property described in the will, or a stated amount intended to reduce a monetary gift.

If the formal requirements for satisfaction are not met, the beneficiary keeps both the lifetime gift and the testamentary gift.

Worked Example 1.7

T’s will provides: “I give my antique piano to my son, Steve.” Two years later, T gives the antique piano to Steve during life and writes a signed note stating, “This piano is the same one mentioned in my will. I want this gift now to replace the will gift.” T does not change the will before death. At T’s death, Steve claims the piano and also claims a replacement gift under the will. What result?

Answer:
Steve keeps the piano he received during T’s lifetime, but he takes nothing more under the specific bequest. The lifetime gift of the same item, combined with T’s signed note expressing intent to satisfy the will provision, results in ademption by satisfaction of the testamentary gift.

Additional Exam Warnings

Exam Warning:
Ademption by extinction applies only to specific gifts. If the will gives a sum of money or a gift from a specified fund, and that fund is insufficient or missing, the beneficiary usually receives the value from other estate assets.

Exam Warning:
Always consider who caused the change in the property and whether the testator had capacity. Voluntary action by a competent testator (selling or giving away the asset) usually causes ademption by extinction. Involuntary changes during incapacity (sales by a guardian or agent, condemnation, destruction with insurance) frequently trigger statutory exceptions that preserve value for the specific devisee.

Revision Tip

Always identify whether the gift is specific, general, demonstrative, or residuary before applying the ademption doctrine. Only specific devises or bequests are subject to ademption by extinction, and many modern exceptions allow the beneficiary to trace proceeds or substitute property.

Key Point Checklist

This article has covered the following key knowledge points:

Ademption is the failure or reduction of a testamentary gift because the specifically described property is not in the estate at death, or has already been given during life with the intent to satisfy the gift.
Wills are ambulatory; changes in assets between execution and death are central to ademption analysis.
Only specific devises or bequests are subject to ademption by extinction.
General and demonstrative legacies are not adeemed; beneficiaries receive the stated value from other assets if the named source is unavailable or insufficient.
Partial ademption occurs when only part of the specifically devised property is disposed of before death; the remainder passes to the beneficiary.
Under modern statutes (including the UPC), proceeds from an executory contract for sale of specifically devised land, as well as certain insurance and condemnation proceeds, usually pass to the specific devisee.
Sales by guardians or agents during the testator’s incapacity commonly fall within statutory exceptions that prevent ademption by extinction and preserve proceeds or substitute assets for the beneficiary.
Ademption by satisfaction occurs when the testator gives the same property (or its value) during life with the required intent, typically evidenced in writing.
Correctly classifying the type of gift and identifying applicable exceptions is essential for accurately answering MBE questions on ademption and title transfer at death.

Key Terms and Concepts

Ademption
Ademption by Extinction
Ademption by Satisfaction
Specific Devise
General Legacy
Demonstrative Legacy
Residuary Gift
Equitable Conversion
Executory Contract of Sale
Guardian or Conservator
Partial Ademption

Titles - Ademption