Leaving Out the Best Part: No Residuary Clause in a Will or Trust

The provision in the Will or Trust which designates what happens to the "rest, residue and remainder" of an estate after specific devises are made is sometimes referred to as the "residuary provision" or "residuary clause."Every Will and Trust should include a residuary clause. This is the provision that acts as the "catch all" for all remaining assets or property not specifically distributed. In many estates, the residuary clause is where the bulk of the assets are devised.

Recently, I encountered a Will that a person had prepared using an online program. The Will left certain specific items to beneficiaries but it lacked a residuary clause. As this person's estate goes through probate, what happens to the residue after paying all costs of administration, taxes, creditors and after all specific gifts are distributed? Who will get what's left?

Under Florida law, when a Will or Trust lacks a residuary clause, the residue will be distributed as it would if there were no Will or Trust. In other words, it goes to whoever has highest priority under Fla. Stat. Section 732.103, Florida's intestacy statute. This results in a "partial intestacy" as to the portion of the estate which is not specifically devised.

An example will help demonstrate how this works. Nancy is a widow with no children and no living parents. She does have one sibling, a sister, but Nancy does not want her sister to receive anything under her Will. Nancy's estate consists of the following: $40,000 in a savings account, a coin collection, a Ford F-150 pick-up truck, and a house, including contents. Nancy's Will provides: "Upon my death, I devise a cash gift of $3,000 to my church, my F-150 truck to my nephew, Tommy, and my coin collection and household contents to my niece, Katie." The Will does not contain a residue provision covering "all of the rest, residue and remainder" of the assets. As a result, when the estate goes through probate, the church will receive $3,000, Tommy will receive the F-150, and Katie will receive the coin collection and the household contents. All of the rest will go to Nancy's sister under Florida's intestacy statute. Ultimately, failing to have a residuary clause results in the opposite of what Nancy intended.

Failure to have a residuary clause in a Will or Trust seems to be a symptom of our "do-it-yourself" generation. Many online forms or software programs don't ask the right questions to result in a Will or Trust with a proper residuary clause. In an effort to save money, the do-it-yourselfer has likely caused more expense for his loved ones when probate or trust administration occur. He or she may also have caused the distribution of assets in a way contrary to his or her intentions.

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