Sale by Agent Triggered Ademption

In the case of In re Estate of Bauer, 700 N.W.2d 572 (Neb. 2005), the sale of real property by an agent under a durable power of attorney triggered an ademption of the specific devise of that property.  The court refused to extend the statutory exception to the ademption by extinction rule for sales by a conservator or guardian to a sale by an agent for an incompetent principal.

Accordingly, the principal should list in the durable power of attorney the items that are specifically given in the principal’s will.  The agent should then be instructed to sell these items only as a last resort.  Doing so will increase the chances that specifically gifted items remain in the principal’s estate and consequently be available to the beneficiaries.