The Body of a Will
Most of the formalities of a will come at the beginning of the will and at the end of the will. The initial clauses usually announce the intention of the testator to make a will. The closing clauses usually indicate that the will has been signed and witnessed as required. In between the initial clauses and the closing clauses is the body of a will. The body of the will is where the testator directs the disposition of his or her estate.
Receiving Property Under a Will
In most states, a document is not a will unless it disposes of some property. Accordingly, the body of a will must dispose of at least some property. To avoid claims that the testator lacked the intent, capacity, or freedom to make a will, the body of a will should dispose of all property not otherwise disposed.
The testator must first pay the debts of his or her estate. What remains is the testator’s net estate. A beneficiary is a person who receives property by from a testator’s net estate. A gift is an intentional transfer of property from a person’s generosity. A testator’s direction to transfer property from his or her net estate to a beneficiary is a gift.
A testamentary gift is a gift in a will. Traditionally, a gift of real property in a will is known as a devise. Traditionally, a gift of money in a will is known as a legacy. Traditionally, a gift of personal property other than money in a will is known as a bequest. Today, any gift of personal property may be known as bequest or legacy. Today, it is generally said that a testator devises real property to a devisee and bequeaths personal property to a legatee. In each case, the testator gives or leaves property to a beneficiary.
A will may leave specific real property to a specific beneficiary. Each specific gift of real property is known as a specific devise. A will may leave specific personal property to a specific beneficiary. Each specific gift of personal property is known as a specific bequest or specific legacy. A will may leave money from a specific fund to a specific beneficiary. Each amount of money from a specific fund is known as a demonstrative legacy. A will may leave money from the general assets of the estate to a specific beneficiary. Each amount of money from the general assets of the estate is known as a general legacy.
After all specific gifts, if any, are made, a will can and should contain a residuary clause. A residuary clause gives away any property remaining in the testator’s estate. A residuary clause makes a residuary gift. Traditionally, any remaining personal property was known as the residue of the estate. Traditionally, any remaining real property was known as the remainder of the estate. Today, the words ‘residue’ and ‘remainder’ are used interchangeably. If there is no residuary clause, any property remaining in the testator’s estate is disposed of by intestate succession (as if the testator died without a will).
A will may also contain provisions for a trust.
As a general rule, a devise, a bequest, a legacy, or a trust in a will may benefit any person or legal entity, unless the gift violates public policy or a condition imposed by the testator is not met.
Copyright 2012 LexisNexis, a division of Reed Elsevier Inc.