New York allows people to designate how their property and assets should be distributed after they die. Typically, this is accomplished through the formation of a legally valid will as part of a larger estate planning effort.

For example, the person who creates the will, known as the testator, can devise whomever they wish to receive certain items. The person receiving those items is known as a beneficiary. However, sometimes problems arise when certain specifically devised property or assets are no longer in the testator’s estate when they die.

A good example of that might be a will created by the founder of a family-owned restaurant for the benefit of his or her children. Imagine how the destruction of that restaurant by a fire might affect the beneficiaries named in the testator’s will. Such a situation is known as ademption by extinction. In other words, the wishes of the testator cannot be carried out because there is no longer any devised property to bequeath to the beneficiaries.

Fortunately, it still may be possible for those beneficiaries to receive insurance proceeds as a result of the fire. An attorney experienced in New York estate planning law could potentially raise that exception in New York’s Surrogate’s Courts on behalf of the intended beneficiaries.

It’s also important to know that the doctrine of ademption does not only apply to total losses. In some circumstances the substantial nature of certain assets or property can change over time. In fact, some items may increase or diminish in value substantially from the time when the testator created his or her will. That is also another reason why consulting with an estate planning attorney may be a good strategy for any beneficiaries involved in similar situations.

Source: New York State Bar Association, “Ademption in New York: Legislative and Judicial Recaps and Recommendations,” Jim D. Sarlis, accessed June 15, 2015