Specific Will Devises
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What is a specific will devise?
According to the laws governing wills, a specific devise is a particular item or property in an estate that is transferred to the recipient upon the owner’s death. It may be a certain piece of property, such as a unique collectible, or a particular plot of land that is specifically described in the will.
If the specified will devise is for a certain amount of money, then the gift will be payable from a specified source rather than from the general assets of the estate. For example, the estate owner may choose to transfer money from a special bank account that they have set aside for that purpose.
What is a general will devise?
In contrast, a general will devise is an item that is payable from the general assets of the estate. Thus, if the testator does not specify how the gift is to be paid, then the recipient will be paid from the general estate funds.
The difference between general and specific devises can sometimes be very slight. For example, if the testator seeks to transfer “50 shares of stock”, then it may be considered to be a general devise. However, if they wish to transfer “my 50 shares of stock” or “50 shares of stock from Company X”, then this may be considered a specific devise. These types of gifts can also be treated like a hybrid general/specific devise, in which case it is called a “demonstrative gift”.
What difference does it make whether the gift is classified as general or specific?
The distinction between specific and general devises usually arises in a situation involving ademption. Ademption occurs when the testator names a specific devise in their will, but at the time of death they do not own the specific item they referred to, or the item is no longer a part of the estate. In this situation the gift is said to be “adeemed”, which means that the gift fails and the beneficiary receives nothing. Ademption only applies to specific devises.
For example, assume that the testator stated in their will that they will transfer their wedding ring to their daughter upon their death. However, at the time of death, the ring is no longer part of the estate because it was previously sold. Since the wedding ring is a specific devise and no longer part of the estate, the ring is “adeemed”. This means that the daughter will not receive the ring nor will she be entitled to the monetary value of the ring.
General devises are dealt with differently. Suppose the testator states that they will transfer $10,000 to their nephew upon death. If the estate cannot cover the general devise of $10,000 upon the person’s death, then the gift will not necessarily fail. In this case the gift is not adeemed, and instead, other assets from the estate may be sold in order that the gift of $10,000 can still be transferred to the nephew.
What is an anti-ademption law?
Laws governing ademption vary from state to state. Some states allow specific devises to be treated somewhat like general devises. That is, if a specific gift is adeemed or fails, then the court may allow other assets to be sold in order to pay the person the value of the gift. These statutes are referred to as “anti-ademption laws” and are available in only some jurisdictions. Their purpose is to prevent gifts from failing and to ensure that the beneficiary receives some sort of devise in accordance with the testator’s general wishes.
What can I do to avoid confusion over specific devises?
The best way to avoid confusion is to be as clear as possible when drafting a will. You should use language such as “specifically” or “specific” or “specific devise”. If money is to be paid out, you should indicate clearly what source will be used to fund the monetary gift. Also, it is acceptable to state phrases such as “if I own this property at the time of my death”. You may also wish to classify gifts into separately labeled categories of general and specific devises. That way, if a gift is not included in the specific devise list, then it will likely be treated as a general gift.
Do I need a lawyer for a specific devise issue?
Disputes over specific devises can often present many challenges for beneficiaries and the estate administrator. It is important that you be very precise in how you wish your estate to be distributed. A competent attorney can help you draft a will that indicates your intent in a clear and understandable manner. A lawyer can also help you to determine what the laws of your state are regarding specific devises.
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Last Modified: 02-22-2013 04:15 PM PST
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