Devise

Definition

In legal terms, “devise” refers to the act of gifting or transferring real estate property through the use of a will or last testament. It specifically applies to immovable property, primarily land and buildings. The term “bequeath,” on the other hand, is often used to describe the gifting of personal property, such as automobiles, jewelry, or art, through the use of a will.

Examples

Scenario 1: John Doe devises his beachfront villa to his nephew, ensuring the property remains in the family.
Scenario 2: In her will, Mary Smith devises her primary residence to her daughter. Simultaneously, she bequeaths her vintage car collection to her son.
Scenario 3: Upon his death, Robert Jones’ will stipulates that his investment property portfolio is to be devised to his two grandchildren equally.

Frequently Asked Questions (FAQs)

Q1: What is the primary difference between devising and bequeathing property?

A1: Devise refers specifically to the distribution of real property (land and buildings) through a will, whereas bequest refers to the distribution of personal property (such as money, jewelry, vehicles) through a will.

Q2: Can a person modify their devise after creating a will?

A2: Yes, amendments to a will can be made through a codicil, which allows the testator to modify, change, or revoke parts of the original will, including any devise.

Q3: Can someone contest a devise?

A3: Yes, like any other provision in a will, a devise can be contested in probate court by potentially interested parties, typically on grounds of undue influence, fraud, or lack of testamentary capacity.

Q4: Is there a specific terminology for devising but only granting a life interest in the real estate?

A4: Yes, this is known as assigning a “life estate,” where the beneficiary has the right to use the property for their lifetime, after which it passes to a remainderman designated in the will.

Q5: Does the devise apply only to residential real estate?

A5: No, a devise can apply to any type of real property, including commercial properties, undeveloped land, and agricultural land, among others.

Bequest: The act of giving personal property through a will.
Codicil: A supplement or addition to a will that explains, modifies, or revokes a part of it.
Life Estate: A type of ownership where a person is entitled to use the property for their lifetime, after which it reverts to another beneficiary.
Remainderman: A person who inherits or is entitled to inherit property upon the termination of the estate of the former owner, usually after a life estate.
Testator/Testatrix: A person who has made a legally valid will before their death.

Online Resources

References

Black’s Law Dictionary, 11th Edition.
“Wills, Trusts, and Estates” by Jesse Dukeminier, Robert H. Sitkoff.

Suggested Books for Further Study

“The Complete Book of Wills, Estates & Trusts” by Alexander A. Bove Jr.
“The Executor’s Handbook” by Theodore E. Hughes and David Klein
“Plan Your Estate” by Denis Clifford

Real Estate Basics: Devise Fundamentals Quiz

### What type of property can be devised? - [ ] Personal property such as jewelry - [ ] Vehicles - [x] Real property like land and buildings - [ ] Stocks and bonds > **Explanation:** The term 'devise' refers specifically to the gifting or transferring of real property (immovable property) through a will, such as land and buildings. ### Which term is used for the act of giving personal property through a will? - [ ] Devise - [x] Bequest - [ ] Codicil - [ ] Inheritance > **Explanation:** Bequest is the term used for giving personal property (movable property) through a will. ### Can a person change their will to alter the devise? - [x] Yes - [ ] No - [ ] Only if they move to a new home - [ ] Only with the beneficiary's consent > **Explanation:** A person can amend their will through a document called a codicil, enabling alterations to the original will, including any devise. ### What document would be used to amend a will? - [x] Codicil - [ ] Affidavit - [ ] Trust agreement - [ ] Deed > **Explanation:** A codicil is used to make changes or modifications to an existing will. ### Who is a remainderman? - [ ] The original owner of property - [ ] A temporary custodian of the will - [x] A person who inherits property after the expiration of a prior estate, such as a life estate - [ ] The executor of the will > **Explanation:** A remainderman is someone who inherits property after the termination of a prior interest, often after a life estate. ### Can a devise be contested? - [x] Yes - [ ] No - [ ] Only by the executor - [ ] Only by a spouse > **Explanation:** A devise can be contested in probate court under grounds like undue influence, fraud, or lack of testamentary capacity by interested parties. ### What is a life estate? - [x] The right to use property for a lifetime, reverting to another person afterward - [ ] Ownership of multiple properties throughout one's life - [ ] Permanent ownership of property - [ ] Temporary use of property > **Explanation:** A life estate grants the right to use and obtain benefits from property for the duration of one's life, after which it passes to a pre-determined remainderman. ### In wills, what term refers to someone who inherits personal property? - [x] Legatee - [ ] Devisee - [ ] Executor - [ ] Trustor > **Explanation:** A legatee is a person who inherits personal property from someone's will. ### Is real estate inheritance handled differently in terms of taxes compared to personal property inheritance? - [x] Often, yes - [ ] No, they are treated equally - [ ] Only when the property is commercial - [ ] Only for properties over a certain value > **Explanation:** Real estate inheritance can have different tax implications and may be subject to different laws and regulations compared to personal property inheritance. ### Who creates codicils? - [ ] County clerks - [ ] Legal advisers without the testator's consent - [x] Testators modifying their will - [ ] Only trustees can create them > **Explanation:** Codicils are created by testators (individuals who made the original will) to modify, explain, or add to their original will.