Devise in Wills: Meaning, Types, and UPC Rules

Introduction

In wills and estates, a “devise” is a gift made by will. Traditionally, lawyers used “devise” for real property (land and buildings) and “bequest” or “legacy” for personal property (cash, stocks, jewelry). Many states now follow the Uniform Probate Code (UPC), which uses “devise” for gifts of both real and personal property. The person receiving the gift is the “devisee,” and the person who made the will is the “testator.”

Because state law controls wills, always confirm how your state defines and treats devises. Still, the UPC’s approach is a common reference point for bar exam prep and practice.

What You’ll Learn

• The meaning of “devise” under traditional law and under the UPC
• Types of devises: specific, general, demonstrative, and residuary
• How courts read will language to carry out the testator’s intent
• What happens when a devisee dies before the testator (lapse and anti-lapse)
• What happens when a specifically gifted item is not in the estate (ademption)
• How mortgages and liens affect real property devised by will (exoneration rules)
• Practical drafting and probate tips to reduce disputes and transfer title cleanly

Core Concepts

Definition and Terminology (UPC vs Traditional)

• Traditional usage

  • Devise: Gift of real property by will.
  • Bequest/Legacy: Gift of personal property by will.
  • Devisee: Recipient of a devise of real property; legatee: recipient of personal property.

• UPC usage

  • Devise (noun): Any gift by will, whether real or personal property.
  • Devise (verb): To dispose of property by will.
  • Devisee: Any beneficiary named in a will, regardless of property type.

• Related terms to know

  • Testator: Person who made the will.
  • Probate estate: Property that passes under the will through probate.
  • Non-probate transfers: Joint tenancy, beneficiary designations, transfer-on-death deeds/accounts—these pass outside the will and are not devises.

• Why the distinction matters

  • Under the UPC, a single clause such as “I devise all my property to…” can cover everything the testator owns at death, unless the will excludes specific assets or state law imposes limits (for example, elective share or homestead).

Types of Devises

• Specific devise

  • A particular, identified asset. Example: “I devise my home at 1234 Elm Street to John.”
  • Risk: If the exact asset is not in the estate at death, ademption issues can arise.

• General devise

  • A gift that does not point to a particular asset; it is satisfied from the general assets of the estate. Example: “I devise $100,000 to my niece.”
  • Under the UPC, the same term “devise” is used even for money gifts.

• Demonstrative devise

  • A hybrid: a general gift payable from a specific source. Example: “I give $50,000 from my brokerage account at ABC Investments to Sam.”
  • If the source is insufficient, the balance is paid from other estate assets, subject to abatement rules.

• Residuary devise

  • “All the rest, residue, and remainder” after debts, expenses, and other gifts are paid. This clause catches everything not specifically given elsewhere in the will.

• Class gifts

  • A gift to a group that can change in size, such as “to my children.” Special rules apply if one member of the class dies before the testator.

When Devises Fail: Lapse, Anti-Lapse, Ademption, and Abatement

• Lapse

  • A gift fails if the devisee dies before the testator and the will does not name an alternate taker.

• Anti-lapse statutes

  • Many states (including UPC jurisdictions) save gifts to certain relatives. If a devisee in a protected category dies first, the devise often passes to that person’s descendants, unless the will provides otherwise.

• Ademption (specific gifts)

  • If a specifically gifted asset is missing at death (sold, destroyed, or replaced), the beneficiary may receive nothing or may receive a substitute value, depending on state law and the UPC’s non-ademption rules for certain situations (for example, unpaid sale proceeds or insurance proceeds still owed to the estate).

• Abatement (estate shortfalls)

  • When the estate cannot pay all debts, expenses, and gifts, states use an order of reduction. A common pattern (subject to statute): residuary gifts abate first, then general gifts, then demonstrative gifts, and specific gifts last. The exact order and proportions vary by state.

• Satisfaction

  • A lifetime transfer can count against a testamentary gift if the will or a contemporaneous writing shows that intent, or if statute provides for it.

Real Estate Issues: Title, Liens, and Taxes

• Exoneration of liens

  • Under the UPC approach, real property passes subject to any mortgage or security interest unless the will clearly directs the personal representative to pay off that debt. Many states follow this “non-exoneration” rule.

• Title transfer in probate

  • Real property often requires a personal representative’s deed or a court order to pass good title to the devisee. The deed and order are recorded in the county where the property is located.

• Co-owned property

  • Joint tenancy with right of survivorship passes outside probate to the surviving joint tenant and is not controlled by the will.
  • Tenancy in common passes through probate and can be devised by will.

• Spousal and family protections

  • Elective share, homestead protections, and family allowances can override some will provisions. These rules differ by state and can affect real estate devised to someone other than the surviving spouse.

• Taxes and carrying costs

  • Property taxes, HOA dues, and insurance continue to accrue. The estate pays expenses during administration unless the will allocates them to the devisee.

Key Examples or Case Studies

Example 1: Specific Devise of Real Estate

Clause: “I devise my family home located at 1234 Elm Street to my son, John Smith.” Result: On the testator’s death, and after probate steps are taken, title to the identified property is transferred to John. If the property was sold before death, ademption may apply.

Example 2: General Devise of Assets

Clause: “I devise all my property, both real and personal, to my daughter, Emily Jones.” Result: In UPC states, this covers everything in the probate estate at death unless the will excludes something or statute limits the gift.

Brown v. Brown

Facts: A will gave a lakefront property to one child. Siblings challenged the will, claiming the testator lacked capacity. Holding: The court upheld the specific devise, crediting evidence that the testator understood the nature of the property and the plan stated in the will. Practical point: Clear, specific drafting and proper execution make it easier to defend a will against capacity challenges.

In re Estate of Smith

Facts: The will contained a general devise of “all my property” to a charity. Heirs argued that certain personal items and investments were not included. Holding: Applying UPC principles, the court ruled the general devise covered all probate property unless the will said otherwise. Practical point: Broad residuary or general clauses can sweep in assets that are not named elsewhere in the will.

Scenario: Ademption and Sale Before Death

Facts: A will makes a specific devise of “my Tesla Model X to Alex.” Before death, the testator sells the car and deposits the proceeds. At death, no Tesla is in the estate. Result: Depending on state law and UPC rules, the gift may adeem (Alex gets nothing) or Alex may receive traceable proceeds if a statute or will language supports that result. Clear drafting can avoid surprises.

Practical Applications

• Draft with precision

  • Use full legal descriptions for real estate (street address plus legal description where available).
  • State whether a devise of real property should pass “subject to” or “free and clear of” existing mortgages, and who should pay the debt.
  • Include alternate takers to address lapse (for example, “to John, or if he does not survive me, to his descendants per stirpes”).
  • Add a comprehensive residuary clause so nothing is left undisposed.

• Coordinate with non-probate transfers

  • Review joint accounts, beneficiary designations, and transfer-on-death deeds. These will pass outside the will and can defeat the plan if not aligned with the will’s devises.

• Reduce ambiguity

  • Avoid vague descriptions like “my favorite ring.” If your state allows a separate writing for tangible personal property, reference it in the will and keep it updated.
  • If you use class gifts (for example, “to my children”), define who is included (stepchildren? children born after execution?).

• Anticipate common failure points

  • If a specific asset might be sold or replaced, add a fallback: “If I do not own the Elm Street home at my death, I give $300,000 to John instead.”
  • Address ademption, abatement, and satisfaction directly where possible.

• Probate steps for real property

  • Open the estate and have a personal representative appointed.
  • Identify and value the property; confirm liens and taxes.
  • After creditor periods and approvals as required, distribute the property by recorded deed or court order.
  • Keep insurance in force and pay property expenses during administration.

• Dispute prevention

  • Ensure the will is executed with all formalities required by your state.
  • Consider a self-proving affidavit.
  • For potentially contentious plans (unequal gifts, disinheritance), keep clear records and consider a contemporaneous letter explaining the plan (not legally binding, but helpful background).
  • No-contest clauses may deter challenges in some states (effect varies by statute).

• Bar exam focus points

  • Know the UPC’s broad definition of “devise.”
  • Be able to classify gifts and apply ademption and abatement.
  • Apply lapse and anti-lapse rules to fact patterns.
  • Remember that under UPC-style rules, real property usually passes subject to existing mortgages unless the will says otherwise.

Summary Checklist

• Know the term “devise” under traditional law vs UPC usage
• Classify gifts: specific, general, demonstrative, residuary, and class gifts
• Check for lapse and apply anti-lapse statutes when a devisee predeceases
• Analyze ademption for missing specific items and any applicable non-ademption rules
• Apply abatement when the estate is insufficient to satisfy all gifts
• Address mortgages and liens on devised real property (non-exoneration is common)
• Use alternate takers and a strong residuary clause to avoid partial intestacy
• Align non-probate transfers with the will plan
• Complete probate steps to transfer real estate and record the deed

Quick Reference