If you are thinking about creating an estate plan, you may hear some new and confusing terms. Although many of us estate planning attorneys try to create planning documents that are readable and easy to understand, we are required to use terms and phrases that are unfamiliar outside of the legal world.  

One example is the word devise (very different from the word device). A devise is a legal term that traditionally has referred to a gift of real estate made by a will. However, in common usage, it has been used interchangeably with other legal terms such as a bequest, which traditionally refers to a gift made in a will of personal property—that is, property other than real estate. Courts will uphold the use of either term for a gift of real or personal property in a will if the will clearly shows that the person who created it (the willmaker) intended to make the gift.

Types of Devises
There are several different types of devises: general, specific, demonstrative, and residuary. The distinction between them is important, so let’s look at some examples.

A general devise (or general bequest) is a gift made in a will that does not direct the transfer of a specific piece of property, but rather is a gift of a specified quantity or value that is to be made from any property of the same general type that is part of the willmaker’s estate. For example, if Dirk leaves his children Luke and Leia each a gift of $10,000, those gifts are general devises, and the executor of Dirk’s estate may pay out those gifts from any account or other source of funds that Dirk owns.

A specific devise (or specific bequest) is a gift made in a will of a particular account, parcel of real estate, or other item that that the willmaker intends for a beneficiary to receive. The executor may only satisfy a specific devise by delivering that exact account or item. The gift may not be made from any other accounts or items in the willmaker’s estate, even if the specific account mentioned no longer contains any funds or the item has been sold or destroyed. For example, if Jim’s will specifies that his 1974 Pontiac Firebird is devised to his friend Beth, the executor can satisfy the specific devise only by transferring that exact vehicle to Beth.

A demonstrative devise (or demonstrative bequest) has elements of both general and specific devises because it is a general gift, but the will specifies that it is payable from a specified fund or source of property. For example, if Sam’s will specifies that he leaves Diane a gift of $25,000 but also directs that the gift should be paid from the funds in Sam’s Bank of Boston savings account, he has made a demonstrative devise. Similarly, if Sam’s will provides Diane a gift of any three baseballs in Sam’s extensive baseball collection, this is a demonstrative devise.

A residuary devise (or residuary bequest) is a gift of all property or money that remains in an estate after all expenses, debts, taxes, and any other obligations of the estate have been paid and all the specific, general, and demonstrative devises have been made. Typically, a will includes a residuary clause naming a beneficiary who will receive any remaining money or assets to ensure that nothing, even property the willmaker has not specifically named or has forgotten they own, will pass according to the state’s default rules, which may not reflect the wishes of the willmaker. For example, George’s will could contain a residuary clause stating “I give all of the residue of my estate to Elaine. If Elaine does not survive me, I give all of the residue of my estate to Jerry.”

Why Does the Type of Devise Matter?
The type of devise has very significant implications. A legal concept called ademption refers to a situation where a gift made by a will is no longer in the willmaker’s estate. Ademption does not apply to general or demonstrative devises, however it does apply to specific devises. It does not matter whether the property was intentionally or unintentionally removed from the estate. For example, if Bruce’s automobile is stolen and never recovered, it will obviously be impossible for Vicki to receive it as part of her inheritance. In some states, the law does not permit the substitution of other property to replace the specific devise that is no longer available. So, if the Bruce’s automobile was a substantial part of Vicki’s inheritance, she may receive much less than Bruce intended. Fortunately, some states have nonademption statutes that provide certain exceptions, so that, in our example, Vicki could receive insurance proceeds that have not yet been paid to Bruce at his death because the automobile was totaled in an accident or receive the unpaid proceeds if Bruce sold the vehicle to Jake but had not yet received the amount owed before his death.

Another situation in which the type of devise matters is when an estate is not large enough to cover all the gifts made by the will, administration expenses, creditors’ claims, and other obligations it may owe. Under the law, the doctrine of abatement determines the order in which types of devises are reduced or perhaps eliminated. Generally, the residuary devise is reduced first, then general devises, then demonstrative devises, and lastly, specific devises. This amounts to a presumption under the law that the highest priority of an estate is to make specific devises while all other types of devises are progressively lower priorities. So, if after administration expenses, creditors’ claims, and other obligations are paid, Bruce’s automobile is the only property left in his estate, Vicki will receive her inheritance—but no other beneficiaries named in Bruce’s will would receive an inheritance, even if that was not his intention.

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