If you are thinking about creating an estate plan, you may hear some new and confusing terms. For example, an heir is a person who legally (under a will or according to state law) receives money or property from another person when that person dies.
Likewise, if you have heard an estate planning attorney mention a devise. A devise is a legal term that traditionally has referred to a gift of real estate made by a will. However, in common usage, it has been used interchangeably with other legal terms such as a bequest, which traditionally refers to a gift made in a will of personal property—that is, property other than real estate. Courts will uphold the use of either term for a gift of real or personal property in a will if the will clearly shows that the person who created it (the willmaker) intended to make the gift.
Types of Devises
There are several different types of devises: general, specific, demonstrative, and residuary. The distinction between them is important, so we will provide a definition of each type.
A general devise (or general bequest) is a gift made in a will that does not direct the transfer of a specific piece of property, but rather is a gift of a specified quantity or value that is to be made from any property of the same general type that is part of the willmaker’s estate. For example, if Ward leaves his sons Beaver and Wally each a gift of $10,000, those gifts are general devises, and the executor of Ward’s estate may pay out those gifts from any account or other source of funds that Ward owns.
A specific devise (or specific bequest) is a gift made in a will of a particular account, parcel of real estate, or other item that that the willmaker intends for a beneficiary to receive. The executor may only satisfy a specific devise by delivering that exact account or other item: the gift may not be made from any other accounts or items in the willmaker’s estate, even if the specific account mentioned no longer contains any funds or the item has been sold or destroyed. For example, if Fred’s will specifies that his Canopysaurus Flintmobile is devised to his daughter Pebbles, the executor can satisfy the specific devise only by transferring that exact vehicle to Pebbles.
A demonstrative devise (or bequest) has elements of both general and specific devises because it is a general gift but the will specifies that it is payable from a specified fund or source of property. For example, if Mario’s will specifies that he leaves his brother Luigi a gift of $25,000 but also directs that the gift should be paid from the funds in Mario’s Bank of Mushroom Kingdom savings account, he has made a demonstrative devise. Similarly, if Mario’s will provides Luigi a gift of any three plungers in Mario’s extensive plunger collection, this is a demonstrative devise.
A residuary devise is a gift of all property or money that remains in an estate after all of the specific, general, and demonstrative devises have been made and all expenses, debts, taxes, and any other obligations of the estate have been paid. Typically, a will includes a residuary clause naming a beneficiary who will receive any remaining money or property to ensure that nothing, even property the willmaker has forgotten they own, will pass according to the state’s default rules, which may not reflect the wishes of the willmaker. For example, Lord Grantham’s will could contain a residuary clause stating “I give all of the residue of my estate to my third cousin once-removed, Matthew Crawley. If Matthew Crawley does not survive me, I give all of the residue of my estate to my heretofore unacknowledged son, Thomas Barrow.”
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