Wills, Trusts, and Estates
A devise is leaving something to someone via will.
A specific devise is a devise of a specific item of property. (e.g., my watch to my niece)
If the specific property cannot be given away, the devise is traditionally adeemed.
A general devise is a devise that does not specify which property is supposed to be given to the devisee (usually because it's fungible). (e.g., $10,000 to David or 10 cows to Joel)
A demonstrative devise is a hybrid between general devises and specific devises. It states a general devise that should be paid from a specific source.
If such a source is inadequate, the devise is then paid out of the general, instead of being adeemed.
A residuary devise is when the residue of one's property is left to someone. (i.e., everything not otherwise devised)
If all residuary devises lapse, the heirs of the testator take the residuary devise by intestacy.
If part of the residue lapses, that portion is inherited by the heirs by intestacy. It is not devised among the remaining devisees. (This does not mean class gifts however.)
(This is possibly the least intuitive rule in wills.)
A class gift is a testate gift to a group of described people.
Adoptees and nonmarital children count as children in class gifts if they would count as children for intestacy purposes. UPC § 2-705(b), VA Code § 64.2-101.
If members of the class die before the testator, that portion of the devise is divided among the remaining members.
Rule of Convenience
A class closes as soon as one member is entitled to possession. Even if another person [is born] and satisfies the requirements eventually, he can never take.
A devise lapses if the if the devisee dies before the testator.
At common law, a devise is implied to be conditional upon the devisee's surviving the testator unless specified otherwise.
Know the chart on page 373, which details the process to go through when a gift lapses to find who to distribute it to:
- A gift lapses.
- Does the antilapse statute apply?
- If so, distribute it to the devisee's descendants instead.
- Else, is the gift a class gift?
- If so, reallocate it among the other class members.
- Else, is the gift specific or general? (i.e., not residual)
- If so, it is then added to the residue.
- Else, does the state follow the no-residue-of-a-residue rule?
- If so, distribute it to the decedent's heirs by intestacy.
- Else, distribute it to other residuary devisees if available.
If a devisee is already dead at the time the will is executed or if the devisee is an ineligible taker (often because he is a cat or dog), the devise is void. This is much more uncommon in the digital age.
Nearly all states have antilapse statutes that substitute other beneficiaries for predeceased devisees under certain circumstances. This is because it is presumed that testators would prefer a substitute gift to the devisee's descendants rather than for it to pass by intestacy.
Antilapse statutes only apply if the devisee has a close enough relationship to the testator, as specified by state statute. The UPC's and Virginia's versions applies to grandparents and descendants thereof. UPC § 2-605; VA Code § 64.2-418.
Antilapse statutes can be avoided by specifying in the will what happens if the devisee does not survive the testator. If the will implies contrary intent (e.g., "to my living brothers, share and share alike"), the antilapse statute will also be avoided.
- However, generic "words of survivorship" are not enough of an indication of contrary intent to prevent application of antilapse statutes. UPC § 2-603.
Words of Survivorship
Words of survivorship are generic, boilerplate phrases that claim to condition gifts upon people surviving the testator, such as "if he survives me" or "my surviving children."
UPC § 2-603(b)(3) disregards words of survivorship when looking for contrary intent for antilapse statutes despite them literally stating contrary intent.
- Virginia does not explicity disregard such words. It leaves it ambiguous.
Dean Todd recommends reading all 7,000 words of UPC § 2-603.
Ademption by extinction is a taking away or revocation of a devise that traditionally happens when a specific devise cannot be fulfilled.
Under the traditional identity theory of ademption, specific devises are extinguished if their specifically devised item is not in the testator's estate.
The theory behind the identity theory is that if a testator did not want the ademption, he would have amended his will after losing the property.
Under the newer intent theory of ademption, if a specifically devised is not in the testator's estate, the beneficiary is still entitled to a replacement or cash value of the item if he can show that this is what the testator would have wanted.
This can mean that you get a much more valuable piece of property. E.g., if someone drives a beautiful 2006 Chevy Malibu, devises it in his will, and then trades it in for a Ferrari, the devisee is entitled to the replacement Ferrari.
Satisfaction is when one gives willed property to his devisee as a gift before dying. Traditionally, gifts between executing the will and death are presumed to be in satisfaction of the will.
I.e., if one wills $50,000 to his son, then gives his son $30,000 before dying, his son will only get $20,000 from the will.
Satisfaction only applies to general devises. If items of specific devises are given before death, the devise is adeemed by extinction, not satisfaction.
It is basically the testate equivalent of advancements.
Like with advancements, the UPC greatly limits satisfaction by requiring testators' intent to adeem by satisfaction to be shown in writing. UPC § 2-609.