Wednesday, June 23, 2010

The Pitfall of Specific Bequests

Question: I own a valuable vintage auto that I wish to leave my nephew but only if there is enough money in my estate to take care of my wife. Can I do that with an online last will? Stan, California.
Response: When a last will bequeaths a specific item of property to a designated beneficiary, we call that a specific bequest. The problem presented by your question is that the standard language of specific bequests are that the devisee takes without any qualifiers (i.e., red corvette to my nephew James Jones). To accomplish the result you desire, the specific bequest of the vintage auto to your nephew should be conditioned on the size of the marital estate with your wife (if she survives you) being of a certain size. I'm not aware of any online last will template containing such language. The® last will form does not allow for conditional specific bequests. I suggest you retain a lawyer to custom draft this provision of your last will.

One additional trap to keep in mind with last wills is that specific bequests of an identifiable item of personal property only apply to that item (i.e., the specific vintage auto you name in the will). For instance, if you leave a 1966 red Corvette to your nephew but later sell it and acquire a 1967 Ford Thunderbird which is owned at death, the specific bequest to your nephew will not transfer from the Corvette to the Thunderbird meaning the specific bequest of the vintage auto fails under this example. See Section 2‑606 of the Uniform Probate Code.

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