When you create a will, you have the opportunity to specify how your belongings will be distributed after you pass away. This is called a bequest. In Texas, there are three ways to make a bequest in your will: specific, demonstrative, or by residuary.
Specific bequests are when you leave a specific item to someone in your will. For example, you could leave your car to your son and your house to your daughter. Demonstrative bequests are when you leave assets to someone, but from a specific source. For example, you could leave $50,000 to each to your two children, to be paid out of the sale of your residence. Residuary bequests are when you leave everything that’s left of your estate to someone after all other bequests have been made. For example, you could leave everything that’s left of your estate to your spouse. You can also use a combination of these methods to make bequests in your will. For example, you could leave a specific item to one person and then divide the rest of your belongings among others by percentage or residuary. If you’re not sure how you want to make your bequests, you can always speak with an experienced attorney who can help you determine the best way to distribute your belongings.
What is a Bequest or Devise?
There are three ways a testator, or the person making a will, can bequest something in their will: by devise, by description, or by incorporation by reference.
A devise is a gift of real property, such as land or a house. The testator must describe the property in the will and name the beneficiary who will receive the property.
A description is a gift of personal property, such as furniture, jewelry, or clothing. The testator must describe the items and name the beneficiary who will receive them.
Incorporation by reference is a way to give a gift of either real or personal property without having to describe it in the will. The testator must simply state that they are including certain property in their will and name the beneficiary who will receive it.
Specific Bequest
If a testator wants to leave a specific item to someone in their will, they can do so through a specific bequest. This type of bequest allows the testator to specify exactly what item or items they are leaving to the beneficiary, and how those items are to be used or disposed of. For example, a testator could leave their car to their child with the explicit instruction that it is not to be sold.
If the beneficiary is unable or unwilling to accept the bequest, then it will go to their next of kin as specified in the will. If there is no one else specified, then it will become part of the residuary estate.
Demonstrative Bequest
A specific bequest is a designation of a particular item of property to a particular beneficiary. For example, “I leave my car to my son John.” A specific bequest must be definite and certain as to both the item of property and the person who will receive it.
A general bequest is a designation of a sum of money or other property to a beneficiary without designating any particular item. For example, “I leave $5,000 to my daughter Jane.” A general bequet may also specify that the beneficiary is to receive a percentage of the estate’s assets rather than a specific sum of money.
A demonstrative bequest is similar to a general bequest but involves designating a particular source from which the sum of money is to come. For example, “I leave $5,000 to my daughter Jane, to be paid out of the proceeds from the sale of my house.” In this case, if there are not enough proceeds from the sale of the house to cover the $5,000 gift, then Jane would only receive what was available and would have no claim against the estate for the difference.
Residuary Bequest
If a testator fails to specifically designate in their will how they would like their property to be distributed upon their death, then their property will be distributed through what is called a residuary bequest. This type of bequest gives the executor of the estate the discretion to distribute the property in accordance with the testator’s wishes, as long as those wishes are reasonable.
In order for a residuary bequest to be valid, the testator must clearly state in their will that they intend for their property to be distributed in this manner. Additionally, the testator must provide some guidance to the executor regarding how they would like their property to be distributed. For example, the testator may state that they would like their property to be divided equally among their children.
If you are considering making a residuary bequest in your will, it is important to consult with an experienced estate planning attorney who can help you draft your will and ensure that your wishes are properly conveyed.
Texas Case Law
In Texas, a testator (the person making the will) can bequest property in three 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, such as land, buildings, or an interest in land. A bequest is a gift of personal property, such as money, stocks, or jewelry.
If the will does not direct how the property is to be distributed, then it will pass according to the intestate succession laws. Intestate succession is when a person dies without leaving a valid will and their property is distributed according to state law.
Matter of Estate of Brown
922 S.W.2d 605 (Tex. App. – Texarkana 1996, no writ)
Facts & Procedural History
Samuel Brown (Decedent) passed away in October 1993. His widow, Susan Taggart Brown, petitioned the county court to probate a will Brown made in July of 1991. Decedent’s daughters from a previous marriage (Contestants) objected to the will and moved the matter to District Court. The District Court denied the will on the grounds that it was not executed in a way that constituted a valid will. Charles Brown (Proponent), Decedent’s brother and executor of his estate, then petitioned the county court to admit to probate another will the decedent executed in December of 1983. The court admitted the will to probate, and Charles Brown then petitioned the court to construe the will. Contestants opposed the will, stating that the devise of Decedent’s home and bequest of his insurance proceeds were adeemed (meaning those assets passed under the will’s residuary clause). The court found in favor of Contestants. Susan Brown appealed, and the Court of Appeals: (1) reversed the trial court’s ruling that Decedent’s house was not adeemed; and (2) affirmed the ruling regarding the insurance policies. The Court of Appeals found that there was ambiguity in Decedent’s bequest of insurance policy proceeds, and that the trial court was correct in using extrinsic evidence to determine that and that they were not adeemed.
Main Considerations
What are the three ways a testator can devise something under their will?
A bequest or devise can be specific, general, demonstrative, or residuary. A devise or bequest is specific if it is described in the will with such particularity that the property is distinguished from all the testator’s other property, and the testator intended for the beneficiary to receive that particular item, rather than cash or other property from his general estate.
What is the doctrine of ademption?
The doctrine of ademption applies to specific bequests and devises. 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.
The Takeaway
Matter of Estate of Brown shows that, when specifically devised or bequeathed items are removed from a testator’s possession during their lifetime, they will likely be considered adeemed.
Conclusion
There are three ways a testator in Texas can bequest something in their Will. Each of these methods has its own advantages and disadvantages, so it is important to consult with an experienced estate planning attorney to determine which method is best for your particular situation.
Do you need an Experienced Probate Attorney to help?
When a person dies, their assets must go through the probate process in order to be transferred to their beneficiaries. If the deceased had a will, the executor of the will is responsible for ensuring that the probate process is followed and that the assets are distributed according to the wishes of the deceased.
Many people choose to hire an experienced probate attorney to help them with this process. Probate attorneys can help ensure that the probate process is followed correctly and can help resolve any disputes that may arise. They can also provide guidance on how to distribute assets in accordance with Texas law.
If you are considering hiring a probate attorney, it is important to choose one who is experienced and knowledgeable about Texas probate law. The attorney should also be someone you feel comfortable working with and who you can trust to handle your case in a professional manner. Call us today for a FREE attorney consultation. (210) 436-6601.
