Your Will and Residuary Estate

In this post, I discuss the residuary estate — the catch-all clause in a will that distributes everything you didn’t specifically bequeath — and why naming a residuary beneficiary is essential to avoid intestacy surprises on whatever falls outside your specific bequests.

Sometimes when speaking with clients, the question arises, “Does my will need to list all of my property?” The answer is no. In fact, unless you plan on making very specific bequests—“my car to my sister; my stereo to my brother; my CD collection to my neighbor” etc.—it is normally not necessary or desirable to do so. Anything not specifically mentioned in your will becomes part of your residuary estate.

If you simply desire to leave your entire estate to one person or divide it among a few people, it is often best to do so by naming your heirs simply as the recipients of your residuary estate per stirpes. Since your residuary estate is everything not specifically named in your will, if you do not make any specific bequests, it is simply everything.

Sometimes, however, individuals make a will that merely names who is to receive specific pieces of property but does not specify the recipient of the residue of their estate. Where a will names beneficiaries for neither every piece of property nor the residuary estate, any property for which a beneficiary is not named will pass according to the intestacy statute, which, as mentioned in a previous post, provides the following priorities for intestate succession:

1. Descendants (children and their descendants by representation)
2. Surviving spouse of three or more years (entire estate if no descendants)
3. If the surviving spouse was married to the decedent less than three years, the spouse takes 50% of the estate, and the other 50% passes through the remaining tiers below
4. Parents of the decedent
5. Brothers and sisters (or, if predeceased, their descendants)
6. Grandparents, uncles, and aunts (and their descendants) — a single combined class under Ark. Code § 28-9-214(6)
7. Great-grandparents, great-uncles, and great-aunts (and their descendants) — a single combined class under § 28-9-214(7)
8. Surviving spouse of less than three years (regardless of duration) — receives the entire remaining estate if no relative qualifies above, per § 28-9-215
9. Heirs of a predeceased spouse (determined as though that spouse had died intestate, last marriage only, divorced spouses excluded) — § 28-9-215
10. The county (escheat)

Naming a recipient of the residuary estate is therefore always desirable.

Disclaimer: This post is general legal information about the residuary estate, not legal advice. Will-drafting nuances around residuary clauses are state-specific; consult a qualified Arkansas estate-planning attorney about your specific situation.