What Is a Devise in My Estate Plan?
If you are thinking about creating an estate plan, you may hear some new and confusing terms that make your brain hurt. One of those terms might be devise. If you are picturing an electronic or mechanical device, you are not alone—but in estate planning, a devise means something very different.
So, what exactly is a devise in your estate plan?
What Is a Devise?
A devise is a legal term that traditionally refers to a gift of real estate made through a will. Over time, the term has also been used interchangeably with bequest, which traditionally refers to a gift of personal property, meaning property other than real estate.
Today, courts generally focus less on the specific word used and more on whether the will clearly shows that the person who created it (the willmaker) intended to make a particular gift. As long as the intent is clear, the gift will typically be upheld whether it is called a devise or a bequest.
Types of Devises
There are several types of devises, and understanding the difference between them is important because each type is treated differently under the law.
General Devise
A general devise (also called a general bequest) is a gift made in a will that does not identify a specific piece of property. Instead, it directs that a certain amount or value be given from the estate as a whole.
Example:
If Ward leaves his sons, Beaver and Wally, $10,000 each, those gifts are general devises. The executor may pay them from any account or source of funds in Ward’s estate.
Specific Devise
A specific devise (or specific bequest) is a gift of a particular item or piece of property that the willmaker intends a beneficiary to receive.
A specific devise can only be satisfied by transferring that exact item. It cannot be replaced with something else—even if the property has been sold, destroyed, or no longer exists.
Example:
If Fred’s will states that his Flintmobile is devised to his daughter Pebbles, the executor can only satisfy that gift by transferring that exact vehicle. If the Flintmobile is gone, the gift fails.
Residuary Devise
A residuary devise covers everything left in the estate after all other gifts have been distributed and all debts, expenses, and taxes have been paid.
Most well-drafted wills include a residuary clause to ensure that no property passes under state default rules, which may not reflect the willmaker’s wishes.
Example:
A will might state:
“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.”
Why Does the Type of Devise Matter?
The type of devise matters because of a legal concept known as ademption. Ademption occurs when a gift made in a will fails because the specific property described is no longer part of the estate at the time of death.
Ademption does not apply to general or demonstrative devises. However, it does apply to specific devises. If the exact property named in the will is gone, the beneficiary typically receives nothing in its place.
Example:
If Fred’s Flintmobile is stolen and never recovered, Pebbles cannot receive it, and the gift is adeemed—even if Fred did not intend for that result.
Talk to an Estate Planning Attorney
Careful drafting can help ensure your wishes are carried out and reduce the risk of unintended outcomes. Understanding how devises work is one small but important part of creating a solid estate plan.
We can help devise an estate plan that ensures your loved ones receive the money and property you intend, in the way you intend.
