The following is provided for informational purposes only and is not, nor should it be construed as legal advice.
Should my Will be asset specific (i.e., should I list individual properties and indicate who should get each)? The answer to this question really depends upon what you are attempting to accomplish by the gifts in your Will.
Specific bequest or devise – If your goal is to make sure that a particular person is given a particular asset that is in your estate, then listing a specific gift is the approach needed to ensure that such gift is made as you wish and have dictated in your Will.
Examples of special bequests or devises that might be encountered include the following:
- If you have a particular asset such as grandmother’s wedding ring, your 1958 Corvette (don’t we all wish), a piece of art or a sentimental gift, a special bequest is a simple way to clarify your intent and to make certain that a particular heir gets that particular piece of property.
- Specific devises or bequests may even go so far as to specify that one of your heirs, for whatever reason you wish, should be given a particularly valuable portion of your estate, such as the family home, to the exclusion of others. This may be accompanied by an instruction to your executor to determine the value of the home and then to equalize gifts between heirs based upon that value, or it may instruct the executor to ignore disparity between gifts.
Any type of property might be made subject of a special bequest or devise.
General Bequest or Devise – A general gift typically relays the message, “Take all of my property which is not subject to a special bequest or devise and distribute it to my named heirs in the manner that I describe herein.” That described manner may be an equal distribution to heirs, a stated percentage of value to named heirs or such other plan of distribution that describes your particular wishes.
There are great advantages in using general bequests and devises because the particular assets that you own at the time that the Will is executed may (and probably will) change over time. If you were to sit down today and attempt to figure out how you could equitably divide your property between three beneficiaries, the task, although daunting, is possible. If, however, you were to try to apply that same specific distribution to your property in ten or twenty years, it would likely prove to be impossible or near impossible.
For example, if you live at 123 Sunny Lane today and you drive a 2018 model “putt mobile,” the chances are very good that in 10-20 years that old “putt mobile” will have been replaced with a different “putt mobile,” and you may or may not still own the property at 123 Sunny Lane.
Attempting to distribute your entire estate by specific gifts instead of general gifts can prove to be a nearly impossible task and can lead to many questions at the time of probate regarding your intent.
The approach which is probably utilized most often is to do a combination of specific and general bequests or devises.
This manner of giving will allow you to make sure that your grandson gets your 1958 Corvette while still making it possible for your executor to identify the remainder of your property and divide it as you desire.
Another common and favored method to do specific gifting for particular persons (although not recommended for valuable items like your ’58 Corvette or the Hope Diamond) is to include instructions in the Will which incorporate a separately maintained list of personal items for distribution. This firm is fond of this method because it is flexible and you will not be required to hire an attorney to write a new codicil to your Will if you break the red, white and blue widget intended for Billy Bob. You can simply make a new list. This approach has some distinct advantages, but is also subject to specific shortcomings and should be discussed with your attorney.
Many clients avoid making special gifts to particular persons for fear of appearing to favor one beneficiary over another. If that is one of your concerns, it can easily be addressed by making clear in another paragraph in your Will that, although you have made special gifts, the value of those gifts should (or should not) be considered in arriving at totals to be distributed pursuant to a general devise or bequest.
The “bottom line” is this: Your Will should express exactly how you wish for your property to pass after your death. An attorney of your choice who is experienced in the writing of Wills can be of great assistance to you in determining what should or should not be subject of a special bequest or devise and what should be left as a general gift.
James Bright has been admitted to practice before the Federal Courts for the Southern District of Texas and Eastern District of Texas as well as all of the Justice Courts, Probate Courts, County Courts at Law, District Courts, Courts of Appeal and Supreme Court for the State of Texas. He maintains an office in Houston and by appointment another at 208 McCown Street in the heart of historic Montgomery. Contact may be made by telephone (936) 449-4455 or (281) 586-8277. For more information about wills or probate in Texas, please see – www.houstontxprobate.com.
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JAMES M. BRIGHT
14340 TORREY CHASE BLVD., Suite 150
Houston, Texas 77014