Devising Real Property

Devising real property can be tricky. But, like so many other issues that can arise when drafting a will, the general remedy to any potential complication is clarity. The devise must be clear as to what is included in the gift. Here is a classic example:

“I devise all interest in the family farm to my son Andrew.”

What does that mean? Does that include the real property only? The house built on the farm property? The tools and equipment involved in the farm labor?  Whatever is intended to be included in the devise should be articulated clearly in the provision.

Generally, a devise of a house, building, or dwelling without any other qualifications includes the land the house sits on and the land sitting within the commonly recognized enclosure (like a fence, wall, or other type of marking).

If the real property to be devised is the family residence, how it should be devised can be effected depending on how the property is held. Of course, if the residence is held in joint tenancy, there is no need for a devise because the title will pass by operation of law. Same thing if the residence is held as Community Property with Right of Survivorship. This is a point that is critical to speak about with your estate planning attorney.


Image By: James.Thomspon