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What is a Testamentary Gift? A Comprehensive Legal Overview
Definition & Meaning
A testamentary gift is a type of gift that is specified in a person's will and takes effect only after their death. The ownership of the gift is transferred to the recipient, known as the donee, only when the donor, or testator, passes away. Testamentary gifts can be categorized into two main types: a devise, which refers to gifts of real property (such as land), and a bequest, which pertains to gifts of personal property (such as money or personal items). While many states no longer differentiate between these terms, some still maintain a distinction.
Table of content
Legal Use & context
Testamentary gifts are primarily used in estate planning and probate law. They are essential for individuals who wish to distribute their assets according to their wishes after death. Understanding how testamentary gifts work can help individuals create effective wills that comply with state laws. Users can manage this process themselves using legal templates provided by services like US Legal Forms, which offer resources drafted by experienced attorneys.
Key legal elements
Real-world examples
Here are a couple of examples of abatement:
Example 1: A person writes in their will, "I give my house at 123 Main Street to my friend John." This is a testamentary gift in the form of a devise.
Example 2: A person states in their will, "I bequeath my jewelry collection to my sister Mary." This represents a testamentary gift in the form of a bequest.
State-by-state differences
State
Distinction Between Devise and Bequest
California
No distinction; both terms are used interchangeably.
New York
Maintains a distinction; "devise" for real property and "bequest" for personal property.
Texas
Generally uses both terms without significant distinction.
This is not a complete list. State laws vary, and users should consult local rules for specific guidance.
Comparison with related terms
Term
Definition
Devise
A testamentary gift of real property.
Bequest
A testamentary gift of personal property.
Legacy
A broader term that can refer to both devises and bequests.
Common misunderstandings
What to do if this term applies to you
If you are planning your estate and wish to include testamentary gifts, consider drafting a will that clearly specifies your intentions. You can use legal form templates from US Legal Forms to create a will that meets your needs. If your situation is complex, it may be beneficial to consult a legal professional for personalized advice.
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