Real or Personal

Sometimes a decedent doesn’t specifically devise the subject tract to anyone. Rather, you may see more general language, such as that referring to “all rest, residue, and remainder”, “all my real property”, and/or “all my personal property”.

“All rest, residue and remainder” refers to any other property not specifically bequeathed or devised within the will. Let’s take a look at the other two in more detail below.

Real property is basically land and anything attached to the land (such as a house or other permanent structure). Oil and gas interests, as well as royalty interests, are generally considered real property. As always, make sure to familiarize yourself with the relevant statutes of the state in which the property lies.

Pretty much any other type of property is considered personal property. Once oil and gas is produced, it becomes personal property. Usually in a will, the decedent does not leave physical extracted oil & gas to an heir; rather he/she leaves the interest in the oil and gas (real property) to that heir.

If the decedent left his/her personal property to one heir and his/her real property to another, you will need to know which one received the mineral interest in order to continue running title accurately.

Traditionally, the word “devise” relates to real property and the word “bequeath” relates to personal property. Often the words are used interchangeably, but I recommend using “devise” in your runsheets when referring to the gifting of real property via will.