A will is a legal and binding document that allows a person to express their wishes regarding what should happen to their property after death. A will is executed through the probate process, which is different from most other legal processes because it takes place after a person has died.
Within a will, the testator, or the person making the will, can specifically devise or leave a gift to someone. When a testator leaves specific property to a specifically named person, the testator has left a gift to the beneficiary through a specific devise.
A specific devise is a gift of personal property that is specifically described in a will. For example, “I leave my diamond ring to my niece, Sarah.” A specific will devise is often necessary to make sure that specific property and items go where they are supposed to after the owner dies.
For example, if a person knows that their children do not want an antique dining room set, the testator, or the person making out their will, can use a specific will devise to ensure that a favorite niece receives this dining set.
A specific devise can also include items such as jewelry, artwork, weapons, classic cars, vintage wines, and other collectibles.
It’s important to remember that when you are making out your will, if you want someone to specifically have something, you should use specific language to describe the gift you’re leaving.
Using a specific will devise is also helpful if a person wants to pass on certain items or property to their spouse but does not want the rest of the estate divided equally among the children. Instead, they can specify in their will that certain property goes to the spouse and the rest is left to the children.
In some cases, a specific will devise can be used as part of an estate plan if a person wants to allow someone else to use a particular property but not own it.
For example, a father may want to leave his classic car in trust for his daughter so that she may drive it while she is still living with him. However, after she moves out, the car may become part of her share of his estate which will be divided up among his children.
If a person cannot be specific about who gets what in their estate plan because they are not aware of some people’s interest in certain objects or properties, they may make a general will devise. This allows the estate to be divided up equally among the children or other people who would typically be included in an estate plan.
What Is A General Will Devise?
A general will devise is a type of will that doesn’t name any specific beneficiaries, but rather leaves the assets to be distributed at the discretion of the executor. This would include all other assets and property that the decedent owns in his or her estate.
If the testator does not specify how the gift is to be paid, then the recipient will usually be paid from the general estate funds.
This type of devise in a will can be useful if you want to make sure your assets are distributed in a way that reflects your wishes, but you’re not sure who you want to receive them. The executor is responsible for carrying out your wishes according to the provisions of the will.
Does It Make A Difference Whether A Will Devise Is Classified As Specific Or General?
Many people often wonder whether their will devise should be classified as specific or general. Although both specific and general devises are valid, ademption has the potential to arise in either scenario, depending on what happens to the particular property after the testator’s death.
Typically, ademption statutes provide that a specific devisee may not take any interest in real property if ademption occurs.
What Is Ademption?
Ademption is defined as a situation where the testator intended to give property to a specific devisee or beneficiary, but the gift fails because the property is no longer available due to it being sold, mortgaged, or transferred from the testator before their death.
Most ademption statutes provide that ademption can occur either through a sale by a person other than the testator, or a transfer by a third party who acquires an interest in the property.
If ademption occurs in a will with a specific devise, the beneficiary or devisee receives nothing. In most cases, if a gift is considered “adeemed”, a court will not investigate the testator’s reasoning or intent of why the property is no longer in the estate.
For example, a testator leaves a 1970 Buick GSX to their named grandson, but at the time of the testator’s death, the car had been destroyed in a fire. Since the car no longer exists, the grandson will not be able to take the car nor get the value of the car from the estate. This type of ademption is also referred to as ademption by extinction.
There are, however, certain instances where there can be a partial ademption with a specific devise. For example, If a piece of land has been specifically devised for a beneficiary in a will, but while the testator was still alive, they sold a portion of the land, when the testator dies the beneficiary will receive the remaining portion of land.
How Can I Avoid Confusion Over Specific Devise Issues?
No one wants to think about death, but the fact is that it’s a part of life. If you’re like most people, you’ll want to leave your loved ones with gifts. While there are many things to consider when making a will, one issue that can cause confusion for families is specific devise issues.
Despite our best intentions, sometimes things go wrong while we are making our wills. This can lead to confusion and conflict after we pass away. Thankfully, there are some steps you can take to minimize the chances of this happening.
Avoiding vague or ambiguous wording is one way to provide some guidance in your will. By using clear language that specifically itemizes gifts and property, you will help leave your legacy to your beneficiaries without having to involve the court system to settle disputes.
When you classify your property with language that’s easy for everyone to understand, you can help ensure that your loved ones follow through with your wishes clearly and thus avoid any potential disputes.
Do I Need A Lawyer For Help With A Specific Devise Issue?
There are many reasons why a will may contain language that creates disputes between beneficiaries. When a will is created with the help of an will attorney, it’s more probable than not that the wishes of the testator will be followed.
It’s important to note that once a will has been created, if there are any changes to items or property mentioned in a will, it’s an extremely good idea to update your will to avoid situations like ademption.
If you need assistance interpreting wills, speak with an attorney who will be able to help you navigate your specific case accordingly.
