Residuary Clause

The residuary clause is the part of a will that says where everything not otherwise given should go. After the document pays creditors, taxes, and administrative costs, and after every specific gift has been satisfied, whatever remains is the residue. The residuary clause names who receives it and in what shares.

Practically, the residue is usually the largest part of an estate. Specific bequests tend to be small (a piece of jewelry, a vehicle, a charitable amount). The house, the investment accounts, and most of the wealth flow through the residuary clause.

Families include a residuary clause because no specific gift list is ever complete. New accounts get opened, old assets get sold, and balances change. The residuary clause makes sure the will still works no matter what the inventory looks like at death.

It also prevents partial intestacy. Without a residue, any asset the will forgot to mention falls under Arizona's intestate succession rules and may not reach the people the testator intended.

Arizona follows the Uniform Probate Code on residue. Under ARS § 14-2604, if a residuary beneficiary predeceases the testator and no anti-lapse rule applies, that share is redistributed among the surviving residuary beneficiaries rather than dropping into intestacy. Most well-drafted residuary clauses also include their own backup distribution path that overrides the statutory default.

Documents that include a residuary clause usually contain language along these lines: "All the rest, residue, and remainder of my estate, of whatever kind and wherever located, I give to my spouse if living, otherwise in equal shares to my then-living descendants, per stirpes." This is descriptive of common drafting, not a template to copy.

• Outright to spouse, then to children per stirpes. The most common pattern for married couples with descendants.
• Into a testamentary trust. The residue funds a trust for minor or asset-protected beneficiaries instead of passing outright.
• Split between people and charity. A fixed percentage to one or more charities, the remainder to family.
• Per capita at each generation. An alternative to per stirpes that equalizes shares across living descendants in the nearest generation with takers.

The most common failure is forgetting the residue entirely. A will that lists specific bequests but never says where the rest goes creates partial intestacy and forces the family through extra court process. A second failure is naming only one residuary beneficiary with no backup. If that person dies first, the share may drop through the document and into intestacy. A third pitfall is using ambiguous language ("the rest of my property in California") that leaves out-of-state or later-acquired assets uncovered.