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VIC Inheritance - Does Money from House Sale Go to Us?

Discussion in 'Wills and Estate Planning Law Forum' started by MimP, 21 October 2015.

  1. MimP

    MimP Active Member

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    My Aunt who has no children has told me and my sister we will get her home as our inheritance when she dies. She is now in respite in an aged care facility and will probably stay permanently. Her house will need to be sold to pay the bond to the Nursing Home. On her death, does that money from the house sale come to me and my sister? She has other nieces and nephews that she has left nominated amounts of money in her will.
     
  2. James D. Ford - Solicitor

    James D. Ford - Solicitor Well-Known Member

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    Hi Mim

    Everything depends on the wording of the bequests in the Will....

    If she has specified that you and your sister will inherit her home, but at the time of her passing she does not own the home - then the gift/bequest fails... this is called "Ademption by Extinction".

    Ademption, or ademption by extinction, is a common law doctrine used in the law of wills to determine what happens when property bequeathed under a will is no longer in the testator's estate at the time of the testator's death.

    Ademption by Extinction
    Ademption by extinction occurs when a particular item of Personal Property or specially designated real property is substantially changed or not part of the testator's estate when he or she dies.

    For example, a testator makes a will giving her farm to her nephew and a diamond watch to her niece.Before she dies, she sells the farm and loses the watch. The proceeds of the sale of the farm are traced to a bank account. After the testator's death, the nephew claims the proceeds from the sale and the niece claims that the executor of the estate should pay her the value of the diamond watch. Neither claim will be upheld. Once the farm is sold, the specific devise is adeemed by extinction.The proceeds from its sale are not its equivalent for inheritance purposes. In some states, however, if all of the proceeds had not yet been paid, the nephew would be entitled to receive the unpaid balance.

    Since the testator no longer owns the diamond watch when she dies, that specific bequest is also adeemed by extinction.

    Recommendation
    My recommendation is that you inform your Aunt about this, and suggest an updated Will be prepared to reflect the change in circumstances.

    Kind regards
     
  3. MimP

    MimP Active Member

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    Thanks James, that info was very helpful.
     

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