What Does Abatement Mean in a Probate

By Lane V. Erickson, Idaho Estate Planning Attorney

Even with the best of plans, problems sometimes arise when it comes to creating an estate plan, or dealing with an estate after an individual has passed away. Sometimes, the family dynamics have changed which create friction between potential heirs. Alternatively, sometimes property that once existed in the estate, and that is listed in the estate planning documents, no longer exists. Or, another problem that sometimes happens is that there simply isn’t enough property in the estate to do everything that the estate planning documents says needs to be done.

The Idaho estate planning and probate attorneys on the Racine Olson team have assisted clients in completing customized estate plans and probates for over 70 years. We have helped numerous clients through the probate process after a family member or loved one has passed away. At the Racine law office our Idaho estate planning team is made up of partners Randy Budge and Lane Erickson and attorneys Nate Palmer and Dave Bagley. Each of our attorneys are experienced and have earned the highest rankings possible on Martindale-Hubbell, Justia, and AVVO, which are all legal reporting services that provide details on the skills and abilities of attorneys.

The purpose of this article is to talk about what happens when there isn’t enough money or property in the estate to do everything the decedent stated in their written last will and testament they wanted to do. To do this, we will first talk about what abatement is. We will then talk about how abatement works under Idaho law when there is a written will. Finally, we will talk about how abatement works when there is no written will.

So, what exactly is abatement? The word abatement is used by lawyers to describe what happens to an estate when there isn’t enough money, property, or other assets to accomplish what the decedent wanted to do. In its simplest terms, abatement simply means a reduction.

To be honest, in most instances, abatement is really not an issue. The reason for this is that usually we suggest to our clients that they not provide specific dollar amounts to any one heir or beneficiary. Rather, we usually suggest that our clients give gifts by percentages. By doing this, it’s much easier for the intentions of our clients to be carried out even regardless of the size of the estate or when there are unexpected debts or expenses that arise through the probate process.

When money, property, and other assets, are given by our clients through a percentage system rather than by a specific dollar amount, reductions are easily made. The only amounts that can be provided or distributed are the specific percentages of what is left after all required debts and expenses are paid. However, our clients don’t always take our advice. When they don’t, then sometimes we have to deal with abatement.

The process of abatement is pretty unique when it comes to distributing an estate where the decedent does have a written last will and testament. The specific statute that deals with abatement is Idaho Code § 15-3-902.

The statute says that the first thing we need to look at is whether the will provides instructions for abatement. This statute states “If the will expresses an order of abatement, or if the testamentary plan or the express or implied purpose of the devise would be defeated by the order of abatement stated in subsection (a) of this section, the shares of the distributees abate as may be found necessary to give effect to the intention of the testator.” Idaho Code § 15-3-902(b). This simply means that the Court is going to do everything it can to carry out the intent and wishes of the decedent.

If the will does not provide specific abatement instructions, then the statutory scheme will be followed. The statute states:

“shares of distributees abate, without any preference or priority as between real and personal property, in the following order: (1) property not disposed of by the will; (2) residuary devises; (3) general devises; (4) specific devises. For purposes of abatement, a general devise charged on any specific property or fund is a specific devise to the extent of the value of the property on which it is charged, and upon the failure or insufficiency of the property on which it is charged, a general devise to the extent of the failure or insufficiency. Abatement within each classification is in proportion to the amounts of property each of the beneficiaries would have received if full distribution of the property had been made in accordance with the terms of the will.”

To summarize, this language simply says that when there are different classifications of gifts given in a will, abatement occurs within each class individually first based on the percentages that are given to each heir or beneficiary. The main reason for all of this is simply to carry out the intent and wishes of the decedent.

Where there is no written will, a slightly different scheme is applied. The big difference here is differentiating between community property and separate property. In this instance, the statute states “If an estate of a decedent consists partly of separate property and partly of community property, community debts shall be charged to community property and separate debts to separate property. Expenses of administration shall be apportioned and charged against the different kinds of property in proportion to the relative value thereof, except that none of such expenses shall be apportioned or charged to the survivor’s share of the community property.”

Again, in short summary, this simply means that if an abatement has to apply, it applies between the categories of separate property and community property depending on which property the expenses apply to.

Abatement may seem complicated, but it really isn’t. Additionally, with some simple planning, the issue of abatement may never even arise when it comes to completing a probate for an estate of a family member or loved one after they have passed away. We have helped numerous clients through the probate process, including dealing with abatement. If you have any questions or concerns, we are confident that we can help you too.

Our team of Idaho lawyers can help you with any of your estate planning or probate needs. Whether you are seeking to create or review an estate plan for yourself or would like to help a loved one, we are available to discuss your options and answer your questions at an initial free 30-minute consultation. Call us toll free at 877.232.6101 or 208.232.6101 for a free consultation. You can also email us directly at lane@racineolson.com or stop by our office at 201 East Center Street, Pocatello, Idaho 83201. We will answer your questions and help you solve your Idaho Estate Planning problems.