It is a common occurrence for a person who has listed property in a will to end up giving that property away (or selling or otherwise losing the property, for that matter) before their passing. This could occur for a wide variety of reasons, such as:
- You give the property away forgetting it was in the will
- You decide you want to give the property to the beneficiary now rather than after you die
- You decide you would rather give the property to someone else other than the listed beneficiary
- You have to sell the property for financial reasons, or it is repossessed, seized, etc.
- The property is destroyed in a fire, stolen, etc.
To be clear, you are free to do anything you would like with your property during your lifetime, regardless of what your will says. But when you do give property away, legal complications can arise after your passing in probate, which can create confusion and high legal bills for loved ones and your estate. The simplest and best way to prevent this from happening is to update your will to reflect the fact the property is gone. That said, here is what might happen should you not update your Florida will after property leaves your estate.
When the Property is Given to the Named Beneficiary Before Your Passing
If you do decide to distribute the asset to the named beneficiary before you pass, a couple things might happen.
The first question a probate court will look at is whether this was a “specific devise” or a “general devise.” A specific devise refers to a specific piece of property, e.g. “my 1957 Chevy” whereas a general devise refers to fungible property like cash, e.g. “$25,000.”
A court is much more likely to determine that giving the specific piece of property to the beneficiary during your life means the will bequest has “adeemed by satisfaction” and thus that the beneficiary is not entitled to demand that the administrator of the estate cough up a second 1957 Chevy. But if the bequest is a general devise, the beneficiary may be entitled to demand a second $25,000 unless it can be shown that:
- the will provides for deduction of the lifetime gift;
- the maker of the will declares in a contemporaneous writing that the gift is to be deducted from the devise or is in satisfaction of the devise; or
- the named beneficiary acknowledges in writing that the gift is in satisfaction
When the Property Does Not Go to the Named Beneficiary
If the property ends up in the hands of someone other than the beneficiary, or it is destroyed before your passing, then a Florida court will determine whether it has “adeemed by extinction.”
Again, a court will look at whether the gift was a specific devise or a general devise in analyzing whether a beneficiary should still receive something under the will, with a person who is to receive a general devise being more likely to inherit than one promised a specific devise. The court will also attempt to look at the intent of the person who made the will in determining whether to grant the beneficiary a gift.
If this sounds complicated and expensive for your family and loved ones to litigate after your death in probate court, it certainly can be. Returning to the point above, the best way to avoid this result is to work with an estate planning attorney to update your will or take similarly effective steps anytime property in your will leaves your estate.
Contact Ryan Mynard Today About Your Estate Planning and Probate Needs in Florida
If you are currently facing a probate-related issue or would like to discuss ways in which to avoid probate through the estate planning process, including creating or updating a will, contact Florida estate planning attorney Ryan Mynard at 850-683-3940 today to get started.