Bequests in Wills in Texas

A last will and testament allows you to specify how your property will be distributed after your death. Within the will, there may be bequests regarding certain assets in the estate. However, what are they used for? The Matter of Estate of Brown, 922 S.W.2d 605 (Tex. App. – Texarkana, 1996) case helps answer this.

Facts & Procedural History

The decedent in this case passed away, and his wife, whom he remarried, admitted his 1991 will into probate. The will was rejected by the probate court, and as a result, his brother admitted a 1983 will into probate instead, which was accepted by the court. The decedent’s daughters from a previous marriage challenged the 1983 will on the grounds that the devise of the decedent’s home and bequest of his insurance proceeds were adeemed through the residuary clause.

Bequests & Devises

A bequest is a gift of personal property made in a will. Bequests can take three forms:

  • Specific: Gifts an identifiable item to someone. For example, a car.
  • Demonstrative: Gifts a certain value to be taken from a named source. For example, $5,000 from a house sale.
  • Residuary: Gifts all remaining estate property after other bequests.

A testator can bequest property in three different ways:

  1. By devising it to a specific person or persons;
  2. By bequeathing it to the executor of the will to be disposed of as directed in the will; or
  3. By creating a testamentary trust for the benefit of named beneficiaries.

A devise is a gift of real property, like land or buildings, in a will. The testator must describe the property in the will and name the beneficiary who will receive the property.

If the will does not direct how the decedent’s estate is to be distributed, then it will pass according to the intestate succession laws. Intestate succession occurs when a loved one passes away without leaving a valid will and their property is distributed according to state law.

Specific Bequests

A specific bequest gives a particular item to someone. It must clearly identify both the property and the recipient. If the recipient cannot accept it, the item goes to alternate takers named in the will or the residuary estate. Specific bequests make ademption more likely if the property is no longer in the estate when the testator dies.

Demonstrative Bequests

Demonstrative bequests gift a set value to be paid from a specified source. If that source cannot cover the full value, the beneficiary receives what is available, not the shortfall. This provides more flexibility than a specific gift.

An example of a demonstrative bequest would be if a testator left $5,000 to his daughter to be paid out of the proceeds from a property sale. However, there may be cases where there isn’t enough funds to cover the demonstrative bequest. If the proceeds from the property sale were not enough to cover the $5,000 bequest, then the daughter would receive what was available and have no claim against the estate for the difference.

Residuary Bequests

A residuary bequest grants any remaining estate property after all other gifts. It gives the executor discretion to distribute assets according to the testator’s general intent. Residuary bequests prevent partial intestacy if other bequests fail.


Ademption applies when a specific bequest is no longer in the estate. When a testator specifically gives an item of property to another in their will but it disappears from the testator’s estate in their lifetime, the specific bequest or devise can no longer be carried out (meaning that it becomes inoperative). When this occurs, unless there is a contrary statement in the will, the specific bequest or devise no longer exists.

In this case, the daughters that contested the will stated that the devise of the decedent’s home and the bequest of his insurance proceeds were adeemed under the will’s residuary cause. The courts ruled in favor of the daughters as it related to the house, but not the insurance proceeds.

The Takeaway

In summary, Texas allows specific, demonstrative, and residuary bequests in wills. Each has advantages for distributing property. Understanding ademption avoids unintended failures. Proper bequest drafting with legal advice can prevent your wishes from being thwarted.

Do you need help with a probate matter in San Antonio or the surrounding area?  We are San Antonio probate attorneys.  We help clients navigate the probate process.   Call today for a free confidential consultation, (210) 239-8518.

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The content of this website is for informational purposes only and should not be construed as legal advice. The information presented may not apply to your situation and should not be acted upon without consulting a qualified probate attorney. We encourage you to seek the advice of a competent attorney with any legal questions you may have.

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