A last will and testament is a document through which a person passes his assets on to others after his death. A Will is also a document through which a person nominates the person who will manage his estate after his death, called the executor.
When a person leaves something to another person (or entity, such as a charity) after his death, he is said to “devise” the asset to the person. There are several types of devises, and each devise has its own implications.
When you leave someone a specific item of property, this is a called a specific devise. For instance, if Mr. Smith leaves his son Joseph his house, then Mr. Smith would be said to have specifically devised his house to his son. Mr. Smith could also leave someone a desk or a wristwatch or a piece of furniture. Each of these devises would be a specific devise of the item that is left to the person.
Specific devises of tangible, personal property can be made through a separate list if the Will references this list. The Wills that I draft for clients always allow the client to create a separate list for tangible, personal property items. In my opinion, the ability for a client to draft a separate list for small (typically sentimental) items is beneficial.
If Mr. Smith creates a Will that leaves items of personal property (a wristwatch, a desk, a collection of baseball cards, etc.) to various people and if he changes his mind as to whom should receive any one of these items, then Mr. Smith would have to draft a new Will. If, however, Mr. Smith puts these devises in a separate personal property list and if Mr. Smith changes his mind about any one of these devises, then he can simply draft a new list. Mr. Smith is free to draft as many lists as he wants without the need to change the Will. The list does not even have to be witnesses or notarized.
Mr. Smith cannot give away money or real estate through such a list. The list only permits the devise of tangible, personal property.
When a person devises a given amount of money to someone, that devise is called a general devise. For instance, if in his Will Mr. Smith says, “I give my daughter Mary $50,000,” this would be a general devise.
The most common devise in a Will is a residuary devise. Most Wills, for instance, simply say, “I give the remainder of my estate to my four children, to be divided equally between them.” This sort of devise is a residuary devise.
The nature of a devise could have significant legal and practical ramifications. For instance, let us assume that Mr. Smith devises his house (worth $400,000) to his son Arthur; various items of personal property to his children, $100,000 to his son Gregory, $50,000 to his daughter Mary, $10,000 to four different charities, and the remainder of his estate to his son Lewis.
When Mr. Smith drafted his Will, his estate was worth $1,600,000. His son Arthur lived with him, so he wanted Arthur to have his house. His son Gregory and his daughter Mary were secure financially, so he gave them a lesser amount of his estate; he wanted them to know he thought of them and loved them, but in his opinion, they did not need his money.
Mr. Smith wanted to help his son Lewis the most. He wanted to ensure that Lewis had sufficient assets to make his way in life.
During the last five years of his life, Mr. Smith lived in a nursing home. The nursing home—like many nursing homes nowadays—cost $15,000 a month or $180,000 a year. With incidental expenses (such as medications), Mr. Smith was spending $200,000 a year on his care. At the time of his death, Mr. Smith only owned his house and $100,000 in cash.
Because Mr. Smith specifically devised his house to Arthur, Arthur will get the house. Because he only has $100,000 in other assets, each of the general devisees (Mary, Gregory, and the four charities) will receive a pro-rata amount of their devises. Lewis, the son whom Mr. Smith wished to benefit the most, will receive nothing.
A will should do more than outline basic wishes. Careful drafting helps reduce uncertainty and ensures that instructions are carried out as intended.
Even small wording mistakes in a will can lead to confusion, conflict, and unintended consequences for the people left behind. Careful drafting helps ensure that your wishes are clear and that families are not left trying to interpret what you meant after the fact.