What Does “Devise” Mean in an Estate Plan?

When creating an estate plan, you may encounter unfamiliar terms that can be confusing. Adding to the confusion, some of these terms may sound the same but have different meanings and spellings. For instance, “heir” refers to someone who receives money or property through a will or according to state law upon the death of another person. On the other hand, “air” refers to the invisible gaseous substance surrounding the earth. While they sound alike, they have distinct
meanings.

Similarly, when an estate planning attorney mentions a “devise,” it has nothing to do with a “device” which typically refers to electronic or mechanical equipment. So, what does “devise” mean in your estate plan? In legal terms, a “devise” traditionally referred to a gift of real estate made through a will. However, in common usage, it is often used interchangeably with other legal terms such as “bequest,” which typically refers to a gift made in a will of personal property, excluding real estate. Courts will recognize either term as long as the will clearly indicates the intention to make the gift, whether of real or personal property.

Types of Devises

There are several types of devises: general, specific, demonstrative, and residuary. Each type has a distinct definition:

1. General Devise (or General Bequest): This type of devise involves a gift specified in a will that doesn’t direct the transfer of a particular property. Instead, it is a gift of a specified quantity or value to be made from any property of the same general type in the estate. For example, if Ward bequeaths $10,000 to each of his sons, Beaver and Wally, those gifts would be considered general devises. The executor of Ward’s estate can fulfill these gifts using any account or source of funds owned by Ward.

2. Specific Devise (or Specific Bequest): This type of devise refers to a gift made in a will of a particular account, parcel of real estate, or other specific item intended for a specific beneficiary. The executor must deliver the exact account or item mentioned in the will, and it cannot be fulfilled using any other accounts or items in the estate, even if the specific account is empty, 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 must transfer that exact vehicle to Pebbles.

3. Demonstrative Devise (or Bequest): A demonstrative devise combines elements of both general and specific devises. It is a general gift specified in the will but payable from a designated fund or source of property. For instance, if Mario’s will states that he leaves his brother Luigi a gift of $25,000 to be paid from the funds in Mario’s Bank of Mushroom Kingdom savings account, it would be considered a demonstrative devise. Similarly, if Mario’s will mentions that Luigi will receive any three plungers from Mario’s plunger collection, it would also be a demonstrative devise.

4. Residuary Devise: A residuary devise refers to the gift of all remaining property or money in an estate after specific, general, and demonstrative devises have been made, and all expenses, debts, taxes, and other obligations have been paid. Typically, a will includes a residuary clause that names a beneficiary to receive any remaining assets, ensuring that nothing is distributed based on the state’s default rules, which may not align with the willmaker’s wishes. For example, Lord Grantham’s will might include a residuary clause stating that all residue should go to his third cousin once-removed, Matthew Crawley. If Matthew Crawley predeceases Lord Grantham, the residue would pass to Lord Grantham’s previously unacknowledged son, Thomas Barrow.

Why Does the Type of Devise Matter?

The type of devise carries significant implications. One important concept is “ademption,” which refers to the withdrawal or nullification of a gift made in a will because the property described in the will is no longer part of the estate. Ademption doesn’t apply to general or demonstrative devises but does apply to specific devises when the specified property is no longer in the estate upon the willmaker’s death. Whether the removal of the property was intentional or unintentional, it can affect the beneficiary. For example, if Fred’s Canopysaurus Flintmobile is stolen and never recovered, Pebbles will be unable to receive it as part of her inheritance. Some states do not permit the substitution of other property to replace the specific devise. In such cases, Pebbles might receive significantly less than Fred intended. Fortunately, some states have nonademption statutes that provide exceptions. For example, if the Canopysaurus Flintmobile was insured and the insurance proceeds have not yet been paid to Fred at his death, or if Fred sold the vehicle to Barney but had not yet received the payment, Pebbles could still receive the unpaid proceeds.

The type of devise also matters when an estate’s assets are insufficient to fulfill all the gifts, expenses, creditors’ claims, and obligations. The doctrine of “abatement” determines the order in which different types of devises are reduced or eliminated depending on the circumstances. Generally, the residuary devise is reduced first, followed by general devises, demonstrative devises, and lastly, specific devises. This suggests that the law prioritizes specific devises and considers other types of devises as lower priorities. In the scenario where Fred’s Canopysaurus Flintmobile is the only property remaining in his estate after paying expenses, claims, and obligations, Pebbles would receive her inheritance, but other beneficiaries named in Fred’s will would not receive anything, even if it wasn’t Fred’s intention.

Let Us Create an Estate Plan to Fulfill Your Goals!

Interestingly enough, “devise” has another meaning related to careful planning. Contact us today, and we can devise an estate plan that ensures your loved ones receive the money and property you wish to leave them in the precise amounts you intend.