Typically, careful estate planning will avoid abatement and ademption. However, people with common estates know little about abatement and ademption and fail to plan properly. As a result, the probate court ends up deciding the distribution of bequests through abatement or ademption.

To avoid abatement and ademption, the testator must prepare a coherent estate plan and keep it updated. If the testator uses the process described in the article The First Step to Estate Planning: Estimate Your Net Worth, then avoiding abatement and ademption is possible.

Ways to Avoid Abatement

In general, abatement results when an estate doesn’t have the assets to cover the estate obligations. Accordingly, if the will doesn’t provide instructions on abatement, then the probate court will use an abatement process to determine the elimination of bequests as mentioned in the article Paying Debts and Honoring Bequests through the Abatement Process. However, the testator can avoid the need for abatement by using the following estate planning methods:

1. If the estate seems too small after estimating the net worth, the testator should leave instructions in the will on how to allocate the limited assets. Additionally, if any assets remain after paying the estate obligations, to avoid abatement, the testator should allocate the residue to residuary beneficiaries. 
2. If the estate is large enough to handle the estate obligations, including bequests, the testator needs to commit enough assets to cover expenses as explained in the article Commit Enough Assets to Cover Expenses in Your Estate Plan. If the testator uses a probate avoidance strategy, abatement could occur by mismanaging the assets. In this instance, to avoid abatement, the testator should plan to use the assets wisely.
3. In small estates, when leaving general cash bequests, the testator should use percentages instead of whole numbers. By using percentages, the amount of money remaining after paying estate obligations is insignificant. So, to avoid abatement in small estates, use percentages when leaving cash bequests.
4. The testator should give away the family heirlooms during life. To avoid losing the heirlooms through abatement, the testator should leave that property out of the will.

Fortunately, unless the testator mismanaged the assets, abatement should concern only small estates with limited assets. If the testator takes time to plan properly and allocates the limited assets wisely, avoiding abatement should result.

Ways to Avoid Ademption

Basically, ademption occurs when property bequeathed to a beneficiary is no longer part of the estate at the testator’s death. Consequently, by the doctrine of ademption by extinction, the beneficiary receives nothing. In the article Determining Bequest Distributions using the Doctrine of Ademption, ademption by extinction is the harshest form of ademption and occurs to only specific bequests. To avoid such a harsh result for beneficiaries, the testator can use the following methods:

1. The testator should revise the estate plan anytime a major life event occurs. If the testator sold property specifically bequeathed in the will, the testator needs to update the will. Otherwise, ademption by extinction occurs and the intended beneficiary receives nothing. 
2. The testator should leave any type of bequest other than specific bequests. In this instance, words matter. In the article of the will regarding the distribution of property, the phrase “I give the car that I own at my death to …” is much better than “I leave my black 2014 Mercedes to …”. By using the first phrase, avoiding ademption by extinction occurs because the beneficiary will receive the car owned by the testator at death.

So, by using general bequests and updating the will whenever major changes occur, ademption by extinction is avoidable.

The Fallout of Abatement and Ademption

The true victims of abatement and ademption are the beneficiaries. If the testator made bequests in the will carelessly, reduced or eliminated bequests to beneficiaries could result. Similarly, if the testator sold or gave away bequeathed property during life without updating the will, the intended beneficiary ends up with nothing.  These results end up infuriating beneficiaries because they are expecting to receive property from the estate. As a result, beneficiaries become belligerent and may sue or contest the estate.

Basically, abatement and ademption are consequences of careless estate planning, procrastination, or unforeseen circumstances. To avoid these consequences, the testator must take estate planning seriously. Instead of procrastinating and ignoring the estate net worth, the testator should take time to plan carefully. Additionally, after building a coherent estate plan, the testator must be diligent in keeping the estate plan updated. If the testator takes these steps, abatement and ademption will continue to be meaningless terms to those with common estates.

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