James M. Weaver, PA

Not Enough To Go Around? – Abatement

When estate assets are insufficient to pay the creditors, the expenses of distribution, and the devises, the result is an abatement.

Then what happens? In what order will those Will provisions “abate,” i.e., be reduced in amount?

F. S. 733.805 controls: Property not disposed of by the will abates first, next residuary devises -the clause in the will that reads, “all the rest, residue, and remainder of my estate, I leave to …”; then general devises – “all my lands in Polk County, Florida, etc.”; and, lastly, specific and demonstrative devises -“I leave Joe $1,000 from my XYZ stock.”

Formerly, there was a distinction between a “bequest” – a gift of personal property, and a “devise” – a gift of real property. Today, the term devise has largely replaced the term bequest, although “bequest” is still in common usage when referring strictly to the disposition of personal property. So, today we refer to a “Devisee” as someone who receives real or personal property or both from a Will.

Historically, real property and personal property were treated differently for purposes of abatement. However, F. S. 733.805 provides that devises abate without priority between real and personal property.

Because a testator usually intends to benefit the residuary devisees most, it is therefore better advice for the will drafter to express specific devises in terms of percentages so that the shares for residuary beneficiaries aren’t exhausted by having to specifically pay more remote beneficiaries first.

It can therefore be risky for a Personal Representative to make a partial distribution to a beneficiary which may later turn out to be improper, particularly if it turns out that there are not enough assets to go around as the Will provides.

The Personal Representative has potential personal liability for improper distributions as well as being personally liable to the taxing authorities for the payment of state and federal estate taxes.



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