According to the laws governing wills and estates, a “specific devise” is a particular item or property in an estate that is transferred to another person (the “beneficiary”) upon the owner’s death. It may something specifically described in the will such as:
- A certain piece of property;
- Rare items such as a unique collectible; or
- A particular plot of land that is specifically identified in the will.
If the specified will devise is for a certain amount of money and for a certain person, 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 to a beneficiary from a special bank account that they have set aside for that purpose.
In contrast, a “general will devise” is an item that is broadly payable from the general assets of the estate. If the testator does not specify how the gift is to be paid, then the recipient will be usually paid from the general estate funds.
The difference between general and specific devises can sometimes be very minor. For example, if the testator seeks to transfer “50 shares of stock”, then it could 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, depending on state probate law.
These types of gifts are sometimes treated like a hybrid general/specific devise, in which case it is called a “demonstrative gift.”
The difference between specific and general devises usually arises in a situation involving ademption. Ademption occurs when the testator names a specific devise in their will; however at the time of death they no longer 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.” This means that the gift fails and the beneficiary then receives nothing. Ademption only applies to specific devises and not general ones.
For example, assume that the testator stated in their will that they will transfer their wedding ring to their daughter when they die. However, suppose also that 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 considered to be “adeemed”. This means that the daughter will not receive the ring, and she will not be entitled to the monetary value of the ring.
General devises are dealt with differently in this regard. Suppose the testator states that they will transfer $10,000 to their nephew when they die. 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. Instead, other assets from the estate may be sold in order that the gift of $10,000 can still be transferred to the nephew.
Laws governing ademption vary from state to state, as each state has its own laws. Some states allow specific devises to be treated similar to general devises. That is, if a specific gift is adeemed or fails, then the court may allow other assets to be sold so the beneficiary can receive the monetary value of the gift.
These statutes are referred to as “anti-ademption laws” and are available in only some jurisdictions or areas. Their purpose is to prevent gifts from failing, and to ensure that the beneficiary receives some sort of inheritance in accordance with the testator’s general wishes.
The best way to avoid confusion regarding a devise is to be as clear as possible when drafting a will. You should use clear language such as “specifically” or “specific” or “specific devise”. If money is to be paid out, you should indicate in a detailed way which source will be used to fund the monetary gift. Also, it is acceptable to state phrases like “if I own this property at the time of my death.”
You may also wish to classify your will 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 when reviewed by the court.
Above all, make sure you clearly list out the items you wish to devise. If you have a rare book you wish the pass on, but you own two copies, then specify which copy you want to pass on. For example, you have two 1st edition copies of The Federalist Papers but one is bound with red leather and the other with black. Make sure you specify the exact item, to avoid further confusion.
Disputes regarding specific devises can often present challenges for beneficiaries and the estate administrator. It’s important that you be very clear and precise in how you wish your estate to be distributed.
An attorney in your area can help you draft a will that indicates your intent in a clear and understandable manner. A wills, trusts, and estates lawyer can also make sure that your will follows the laws and requirements of your state, so that your will is valid and can be easily carried out in the event of your death.