A devise is a gift of property made through a will. Traditionally, the term referred specifically to a gift of real estate. Today, it may be used more broadly to describe different types of property left to a beneficiary in a will.
Understanding whether a devise is general, specific, demonstrative, or residuary is important. The classification may determine what a beneficiary receives if property is sold, destroyed, or no longer part of the estate when the person who created the will dies.
Understanding Estate Planning Language
If you are thinking about creating an estate plan, you may hear unfamiliar and confusing terms that make your brain hurt.
To add to the bewilderment, some words are homophones. These are words pronounced the same way but with different meanings and spellings.
For example, an heir is someone entitled to inherit under state law when a person dies without an effective will covering the property. In contrast, air is the invisible gaseous substance surrounding the earth.
The two words sound alike but have vastly different meanings.
Likewise, if you hear an estate planning attorney mention a devise, it is very different from a device, which usually refers to electronic or mechanical equipment.
What Does “Devise” Mean in a Will?
A devise is a legal term that traditionally refers to a gift of real estate made through a will. The Cornell Legal Information Institute provides this traditional definition of a devise.
In modern usage, devise may be used interchangeably with terms such as bequest. Traditionally, a bequest referred to a gift of personal property, meaning property other than real estate.
The exact terminology can vary by jurisdiction. More important than the label is whether the will clearly identifies the property, the intended beneficiary, and the willmaker’s intention to make the gift.
What Are the Four Types of Devises?
There are four commonly discussed types of devises:
- General devises
- Specific devises
- Demonstrative devises
- Residuary devises
The distinction can affect how the gift is distributed and what happens if the estate does not contain the property or funds described in the will.
1. General Devise
A general devise, also called a general bequest, is a gift that does not direct the transfer of a particular asset.
Instead, it provides a specific quantity or value that can be paid from the estate’s available property of the same general type.
For example, Ward’s will leaves his sons, Beaver and Wally, $10,000 each. These are general devises.
The personal representative may pay the gifts from any appropriate account or source of funds in Ward’s probate estate. The will does not require the money to come from a particular bank account.
2. Specific Devise
A specific devise, also called a specific bequest, is a gift of a particular asset.
The gift may identify:
- A specific parcel of real estate
- A particular bank or investment account
- A vehicle
- Jewelry
- Artwork
- Another identifiable item of property
The personal representative can generally satisfy a specific devise only by distributing the exact property described in the will.
For example, Fred’s will states that his Canopysaurus Flintmobile is devised to his daughter, Pebbles. The gift can be satisfied only by transferring that specific vehicle to Pebbles.
If Fred no longer owns the Flintmobile when he dies, Pebbles may not automatically receive another vehicle or the vehicle’s value. The result will depend on the language of the will and applicable state law.
3. Demonstrative Devise
A demonstrative devise, or demonstrative bequest, combines elements of general and specific devises.
It is a gift of a particular amount or quantity, but the will identifies the preferred fund or source from which the gift should be paid.
For example, Mario’s will leaves his brother Luigi $25,000 and directs that the gift be paid from Mario’s Bank of Mushroom Kingdom savings account.
The amount of the gift is general, but the will identifies a particular source of payment.
Similarly, if Mario’s will gives Luigi any three plungers from Mario’s extensive plunger collection, the gift identifies a quantity to be selected from a specific group of property.
Depending on applicable law and the wording of the will, a demonstrative devise may sometimes be paid from other estate assets if the identified source does not contain enough property to satisfy the entire gift.
4. Residuary Devise
A residuary devise is a gift of the property remaining in an estate after other gifts and obligations have been addressed.
Before distributing the residue, the personal representative may need to pay:
- Specific, general, and demonstrative devises
- Estate administration expenses
- Valid creditor claims
- Taxes
- Other enforceable obligations
A will typically includes a residuary clause naming the person or organization that will receive the remaining property.
The residuary clause helps ensure that forgotten or later-acquired assets do not pass according to state intestacy law.
For example, Lord Grantham’s will could state:
I give all the residue of my estate to my third cousin once removed, Matthew Crawley. If Matthew Crawley does not survive me, I give all the residue of my estate to my previously unacknowledged son, Thomas Barrow.
Without an effective residuary clause, property not otherwise distributed by the will may pass to the willmaker’s heirs under state law.
Why Does the Type of Devise Matter?
The type of devise can affect whether a beneficiary receives a gift and how much the beneficiary ultimately receives.
Two important concepts are ademption and abatement.
What Is Ademption?
Ademption generally occurs when property identified in a specific gift is no longer part of the willmaker’s estate at death.
The property may have been:
- Sold
- Given away
- Destroyed
- Lost
- Replaced
- Transferred into a different form
The Cornell Legal Information Institute defines ademption as the extinction of a testamentary gift because the specified property no longer belongs to the willmaker at death.
Ademption by extinction usually concerns specific devises. It ordinarily does not apply in the same way to general gifts, which can be paid from other available estate assets.
An Example of Ademption
Suppose Fred’s Canopysaurus Flintmobile is stolen and never recovered before his death.
Because the vehicle is no longer part of Fred’s estate, it is impossible for the personal representative to transfer it to Pebbles. She may receive nothing in place of the vehicle unless the will or applicable state law provides another result.
Some states recognize exceptions that may allow a beneficiary to receive certain replacement property or proceeds.
For example, Pebbles might be entitled to unpaid insurance proceeds if the vehicle was destroyed shortly before Fred’s death. She might also receive unpaid sale proceeds if Fred sold the vehicle but had not received the full purchase price.
These rules vary significantly by state.
What Is Abatement?
Abatement applies when an estate does not contain enough property to pay its expenses, debts, taxes, and all the gifts included in the will.
Some devises must then be reduced or eliminated.
The order of abatement is controlled by applicable law and may also be affected by the language of the will. A common order is:
- Property not disposed of by the will
- Residuary devises
- General devises
- Demonstrative devises
- Specific devises
This order can create a presumption that specific gifts have a higher priority than other types of devises. However, the precise rules vary by jurisdiction, and a properly drafted will may alter the statutory order in some circumstances.
An Example of Abatement
Suppose that after Fred’s administration expenses, debts, and other obligations are paid, the Canopysaurus Flintmobile is the only property left in his estate.
Pebbles may receive the vehicle because it was specifically devised to her. Other beneficiaries might receive little or nothing, even if Fred intended them to inherit as well.
This is why an estate plan should account for possible changes in property values, debts, and ownership.
Review Specific Gifts as Your Property Changes
A carefully drafted will cannot always anticipate every change in your property.
Review your estate plan if you:
- Sell property specifically named in your will
- Replace a vehicle or valuable item
- Close or move a financial account
- Purchase new real estate
- Experience a substantial increase or decrease in wealth
- Make significant lifetime gifts
- Change your intended beneficiaries
Regular reviews can help ensure that your will continues to distribute your property in the amounts and proportions you intend.
Let Us Devise an Estate Plan That Achieves Your Goals
Wait, what?
Yes, devise has another meaning. As a verb, it means to carefully plan or create something.
Contact Andre O. McDonald, a knowledgeable Howard County, Montgomery County, and District of Columbia estate planning attorney, so we can devise an estate plan that helps your loved ones receive the money and property you intend to leave them.
- Howard County: 443-741-1088
- Montgomery County: 301-941-7809
- District of Columbia: 202-640-2133
You may also request a consultation online.
DISCLAIMER: THE INFORMATION POSTED ON THIS BLOG IS INTENDED FOR EDUCATIONAL PURPOSES ONLY AND IS NOT INTENDED TO CONVEY LEGAL, INSURANCE, OR TAX ADVICE.
