Is There a Difference Between a Devise and a Bequest?

A will may contain language saying "I give and devise" or "I give and bequeath" a certain piece of property to someone. What is the difference between these two phrases?

Traditionally, a “devise” referred to a gift by will of real property. The beneficiary of a devise is called a devisee. In contrast, a “bequest” referred to a gift by will of personal property or any other property that is not real property. This distinction was historically made because the laws for passing real property and personal property upon death were different.

Modernly, the laws in most jurisdictions treat real and personal property the same, so the distinction is no longer significant. The U.S. Uniform Probate Code even uses “devise” to denote both real and personal property.

What is a Codicil?

A codicil is a testamentary instrument that alters, amends, or modifies specific provisions in a person’s previously executed will. The codicil does not revoke the will. It merely changes some of the provisions of the will. If you have a codicil, then both the will and the codicil are admitted to probate.

A codicil is best suited for making minor changes in the will. If on the other hand you are making major changes to the will, or if you have already written multiple codicils to your will, then you may be better off replacing your will with an entirely new will.

A codicil must be executed with the same formalities as a will. In other words, the codicil must be signed by the testator in the presence of witnesses.

Joint Wills vs. Reciprocal Wills

A joint will is the will of both husband and wife executed in the same document and intended to serve as the will of each. There are several disadvantages to joint wills. A joint will must be probated twice – once after each spouse dies. In addition, a joint will cannot be changed after the first spouse dies – the surviving spouse will be bound by its terms. Joint wills were more common when wills were done by type-writers and it was too tedious to type up a will two times. There is no longer a need for joint wills in this modern era of word processors.

Reciprocal wills are two separate wills executed by husband and wife that contain substantially similar (mirror-image) provisions. For example, their wills may reflect the exact same provisions, naming the transfer of their estate to each other when one predeceases the other, and the transfer of their estate to their beneficiaries upon the death of the last surviving spouse. As long as the spouses have not executed a separate written agreement preventing each other from amending their own will later on, either spouse can change the agreed-upon distribution at any time, even after the death of one spouse.