Help! I Can’t Find An Item Mentioned In The Will

You are at the point in your executor role where you are able to distribute the bequests according to the instructions the deceased left in her will.  All is going great until you get to the line where she gives her beach condo to her son.  But the deceased did not own a beach condo when she died.  What do you do? 

It’s not terribly uncommon

It is not terribly uncommon for us to make a will and then go about our lives without thinking to update it, even when big things happen.  Individuals may make a will when they get married, but fail to update it when they have kids.  Others may sell property mentioned in a will without remembering that they need to change a specific bequest involving that property.  And, unfortunately, natural disasters happen, robbing us of sentimental items we thought would be in our families forever and in the aftermath and recovery, updating a will is the last thing on our minds.  

We’re here to help

If you encounter this as you manage your executor responsibilities, know that this is not something that should cause you undue stress.  The beneficiary of the now-gone item may have some questions for you and we’re here to help.  

When something’s gone, it’s gone. There is no substitution.

In the example of the beach condo from before, the son is sadly out of luck.  If an item listed in a will is not in the estate at the time of a person’s death, that bequest is effectively deleted from the will.  

Let’s say that you were selected for your executor role because of your close and trusted relationship with the family.  You know that the beach condo was sold and the proceeds used to purchase a mountain cabin.  While that’s interesting knowledge to have, it does not mean that the son gets the mountain cabin instead.  The law calls this ademption by extinction.  When something no longer exists, it no longer exists.  Period. End of story.  As executor, you would be violating your duty if you took it into your own hands to try to make a substitution for the beneficiary who is out a specific bequest of personal property like in our example.  It may seem unfair, but if you start meddling and changing the will, you could get in a lot of trouble and incur personal liability.

Executor.org is a free, online resource that helps executors manage their duties in this complex role. This is the best online tool for executors and includes a helpful step-by-step interactive guide and invaluable tips on everything from planning a funeral and keeping beneficiaries happy to dealing with grief and managing estate assets.