Florida Estate Planning Lawyer Blog
When using a Specific Devise in a Florida Will or Florida Revocable Trust it is important to understand how they work and what causes them not to work in order to avoid unintended consequences.
A specific bequest is a gift of a particular identifiable asset within the estate that can be distinguished from any other estate property. For example, “I give the Picasso painting hanging in the living room to Jane” or “I give all of my baseball cards to my son David Goldman.” Typically, specific gifts are given in a Florida Will to a beneficiary that will keep and use the property. Upon the death of the Testator (the person who made the will), problems arise when specific gifts are no longer owned or in their possession or if there is not enough money to satisfy the gift.
In Florida, a specific gift is deemed to be extinguished to the extent that the testator does not own it when they die. This means that the gift is void and the beneficiary has no right to collect the gift. In the previous examples above, if the testator had sold the the Picasso painting or box of baseball cards before his or her death, the gifts would be extinguished and Jane and David would be left with nothing. The problem can also arise when there are specific devises of money in dollar amounts but not enough money or the money is in account with joint ownership or payable on death designations. Since these accounts are not subject to probate, there is no money to give to the named beneficiaries. This can also happen if cash is given, but only stocks are owned at death. There is no requirement to sell other assets to satisfy the specific gifts in the estate.
However, recent changes in the law allow the beneficiary of a specific gift to receive a general gift equal to the sale price of the property if a guardian of the property sold it instead of the testator.
If you would like advice or counseling on any matters related to your devises in your Florida Will or Florida Revocable Trust contact a Jacksonville Estate Planning Lawyer to aid you in the estate planning process.