Also known as: devises · devised · devising · devisable · devisee · devisees · deviser · devisor · bequest of realty · testamentary disposition
Written by attorneys · grounded in primary & secondary sources — see below
A testamentary gift of real or personal property effected by a will. The term covers both traditional dispositions of land and modern dispositions of any property under the Uniform Probate Code.
Dominic Drake owned a house with his wife as tenants by the entirety. While divorce proceedings were pending, Dominic executed a will purporting to devise the house to his brother Derek Douglas. Dominic died before the divorce was final and the tenancy remained intact. Title passed automatically to his surviving spouse by operation of law.
Deborah Dunn executed a will that devised her estate to her two living children in equal shares. After executing the will she had another child, Diego Duarte, whom the will did not mention. Upon Deborah's death the omitted child is entitled to share only in the portion of the estate devised to the then-living children.
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Diana Delgado owned vacant land that she wished to leave to her niece Delilah Duran. Instead of executing a deed during life, Diana included a provision in her will directing that the land pass to Delilah upon Diana's death. Title transferred by devise without any deed from the testator.
Dominic Drake's will described a lot he did not own. Extrinsic evidence showed the description closely matched another lot that Dominic actually owned and intended to leave to his nephew Derek Douglas. The court construed the will to pass the intended lot rather than allow the gift to fail.
Deborah Dunn's will identified a revocable trust she had created during life and devised her residuary estate to the trustee of that trust. The trust terms were set forth in a separate written instrument. The devise was valid even though the trust remained amendable and revocable at Deborah's death.
Diego Duarte's will devised his house to his daughter Diana Delgado. The house was subject to a mortgage that the will did not direct the estate to pay. Under the applicable rule Diana took the property subject to the lien rather than receiving it free and clear.
No. Although the term traditionally referred to gifts of land, modern usage under the Uniform Probate Code treats devise as a disposition of any property by will.
The will cannot dispose of the property. Title passes by operation of law to the surviving spouse if the tenancy remains intact at death.
Yes. A will may devise property to the trustee of a trust identified in the will even if the trust is revocable or amendable after the will's execution.
The devisee generally takes the property subject to the lien unless the will or statute directs exoneration from the estate.
…punitive damages.[^maj-14] Furthermore, state decisions construing local deeds,[^maj-15] mineral conveyances,[^maj-16] and even devises of real estate[^maj-17] were disregarded.[^maj-18] In part the discrimination resulted from the wide range of persons held entitled to avail themselves of the federal rule by resort to the…