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sometimes the best laid plans of the testator simply don't work out property gifted by a will may no longer be owned at the time of death people who are to receive gifts may no longer be alive or an estate may not have the funding to meet the Wills cash gifts provisions in this presentation we will discuss what happens when circumstances caused the fulfillment of a will provision to be impossible or impractical adem ssin occurs when identified property is no longer in the testator's of state at the time of death it could have been sold destroyed or otherwise disposed of during the lifetime of the testator for example let's assume that a will provides that the testator's 2018 Toyota Corolla is to be distributed to his daughter Lisa but by the time the testator passes away in 2035 the Corolla has long been in the junkyard the rule in this case is simple the gift a deems which means that it becomes moot and irrelevant the named recipient does not get reimbursed for the value of the potential gift from other components of the estate this applies whether the property was intentionally removed from the testator's possession such as for example if the testator gave the Corolla to someone else during his lifetime or unintentionally removed such as if the car was repossessed or died add emption also applies if the specific request substantially changes in character so if Jane left a big block of marble to her son Jerry but she later chiseled a life-size statue out of that block of marble the gift would a deem and Jerry would get nothing an exception to this rule applies where the testator's estate received insurance proceeds derived from the loss of the property in some jurisdictions these proceeds are payable to the beneficiary of the property if they are received by the estate representative so if our testator's corolla had been totaled weeks before his death then in these jurisdictions Lisa would be entitled to the auto insurance proceeds Adem ssin also does not apply to demonstrative bequests wherein the testator names the source of the cash bequest even if the source is no longer in the testator's estate upon death the gift is not a deem for example if Sue's will gives Barry ten thousand dollars from my savings account at a and B Bank they as a demonstrative the quest if by her death sue has closed the savings account at a and B Bank the gift to bury is still valid it now retains the status of a general request as though the source had not been specified sometimes estate simply don't have the resources to pay for the administration expenses creditors claims and all the cash be quests made by the well the rules of abatement allocate resources when they are insufficient to satisfy all gifts provided by the well the first type of the quest that fails in a small estates will be residuary bequests residual requests give the remainders of assets after the other gifts have been allocated if the estate is too small to pay for the expenses and the quantified cash gifts then there is no residuary estate as such the residuary bequests are moot and nullified next we look at general requests which are quantified cash gifts these abate proportionately assume Joe's will purports to give $25,000 to Fred $25,000 to George and $50,000 to Irma unfortunately after paying administrative expenses and creditors there's only $50,000 left in the estate this is only enough to pay half of the hundred thousand dollars that the will purported to allocate therefore each of the general bequests beneficiaries will receive half of his or her share Fred and George will each receive $12,500 while Irma receives $25,000 demonstrative bequests get preference over general bequests if their sources are in the estates going back to our example where Sue's will gave Barry ten thousand dollars from her savings account at a and B bank if Sue's account is still in her estate at her death its assets will be used to pay Barry his ten thousand dollars before it is used to pay the other general bequests if the account is no longer in the estate then Barry's bequests simply reverts to the status of a general request and it abates proportionately if there are insufficient assets to pay all general bequests when a beneficiary dies before the testator the gift fails or lapses when a specific demonstrative or general bequest lapses the lapsed gift simply becomes part of the residuary estate so if Jaynes will left twenty five thousand dollars to her neighbor Don and the rest of her estate to her friend Pauline and Don pre deceased Jane then the 25 thousand dollars would be part of the two area states and would go to Pauline as part of that residuary when a residuary bequests lapses and there is no backup or co beneficiary the residuary will be distributed under the rules of intestacy which is the series of rules under which the estate of someone with no will is distributed because the rules of intestacy don't always represent the wishes of the testator it is best practice to name a backup beneficiary for example a residuary bequests may name my children who survived me or if no children of mine survived me then my grandchildren who survived me if no names residuary beneficiaries alive then those assets are simply not provided for by will hence the necessity for the rules of intestacy to step in to avoid lapse in cases where the testator likely would be averse to the result of the lapse all states have anti lapse statutes these prevent lapse where the pre deceased beneficiary was a relative of the testator and is survived by issue which means children grandchildren etc in such case the anti lap statutes provide for the substitution of the beneficiary's issue to take the gift instead of the beneficiary himself for example assume that Melendez will left 25,000 dollars to her son James James however pre deceases Malinda instead of James's gift lapsing it is presumed that melinda would have wanted James's gift to go to James's children since those children are also Melinda's close relatives near her grandchildren as such anti lapse rules allow James's gift to instead be distributed to his children in equal shares different states have different definitions of what degree of relative qualifies for anti lapse benefits all agree that where the beneficiary is not related to the testator the gift would lapse in our earlier example where Jane's gift to her neighbor Don lapsed Don's being survived by children would not trigger the anti lapse rules because there's no reason to assume that Jane would have wanted Don's children to benefit from her estate Don was her neighbor but she does not necessarily have a relationship with his children wool states also agree that the anti lapse provisions would when the initial beneficiary is a child of the testator between the cases where the pre deceased recipients are children of the testator and strangers states vary some states for example Texas and Louisiana extend the predeceasing beneficiaries to descendants of the testator's parents thereby capturing brothers and sisters and their offspring in Connecticut and New York on the other hand the line stops at the siblings thereby excluding nieces and nephews some states even go so far as to apply anti lapse rules where the pre deceased beneficiary has any degree of blood relative to the testator examples of such states include Massachusetts Missouri and Nebraska while ideally we'll provisions would be carried out in accordance with their terms things don't always work out as anticipated the rules of adem ssin abatement and lapse seek to govern these scenarios in a manner that's consistent with public policy and the likely intent of the testator