Also known as: residuary clauses · residue clause
Written by attorneys · grounded in primary & secondary sources — see below
A testamentary clause in a will that directs the disposition of any remaining estate property after all specific, general, and demonstrative gifts have been satisfied. The clause functions as a catch-all to prevent partial intestacy. It may also interact with rules governing lapsed devises and the exercise of powers of appointment.
Regina Robinson's will leaves her vacation home to her nephew Rajesh Rao and all remaining property to her sister Rita Russell. Rajesh predeceases Regina without surviving descendants. Because the will does not specifically state that lapsed nonresiduary gifts pass under the residuary clause, the home does not pass to Rita. Instead it passes by intestacy to Regina's heirs.
Raphael Rivera executes a will containing a residuary clause that makes no reference to any power of appointment. He later dies holding a general testamentary power over trust assets. The clause does not exercise the power under the majority rule. The appointive property therefore passes to the takers in default rather than under the residuary disposition.
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Under the majority rule a standard residuary clause that does not expressly reference the power does not exercise either a general or special testamentary power. Some jurisdictions and the UPC treat a general residuary clause as exercising a general power exercisable in favor of the donee's estate when the creating instrument contains no gift in default. Extrinsic evidence of intent may be considered in appropriate cases.
Any part of the estate not effectively disposed of by will passes by intestate succession to the decedent's heirs. The residuary clause prevents partial intestacy only for property that falls within its scope after other gifts are satisfied or fail.
Under UPC § 2-603 a residuary clause constitutes an alternative devise for a nonresiduary gift only if the will specifically provides that the lapsed or failed devise passes under the residuary clause. Absent that specific language the lapsed gift does not automatically fall into the residue.
No. Specific gifts remain valid and pass under the will. Only the property not covered by any disposition falls into intestacy when no residuary clause exists.
…future assets were to consist solely of the proceeds of these policies and the property which would pour over under the will’s residuary clause. The judge found that the remaining trustee has never received any property or held any funds subsequent to the execution of the trust nor has he paid any trust taxes or filed any trust tax…