Charitable Bequests

What is a Charitable Bequest?

A charitable bequest is a written statement in a will which directs that a gift be made to charity upon the death of the person who made the will (the testator).

Types of Bequests

Specific Bequests

A specific bequest bequeaths a certain dollar amount ($10,000) or certain other property (such as a home, art collection, etc.). This is the most popular form of charitable bequest. Indeed, gifts of specific properties to charity may be uniquely appropriate bequests both for tax and other reasons.

During estate administration, specific bequests are the first type of bequest satisfied. Thus, if the estate cannot support all of the bequests made in a will, recipients of specific bequests are more likely to inherit than other estate beneficiaries. However, there is also the chance the testator may dispose of the property during life, in which case the intended recipient is out of luck.

A specific bequest of a certain dollar amount does not grow if there is an increase in the value of the estate after the donor executes the will. In addition, some specific bequests may be problematic. For example, a bequest of shares of a stock not traded on a public exchange may require an appraisal to set its valuation upon the donor's death. Also, a specific gift of real estate may require site inspection, environmental reviews, and other vetting before the charity can accept such a gift. That is why contacting the charity about the proposed gift before executing a will is a good idea.

Percentage Bequest

A percentage bequest devises a set percentage, i.e., 5% of the value of the estate. A percentage bequest may be the best format for charitable bequest since it lets the charity benefit from any estate growth during the donor's lifetime.

Residual Bequest

A residual bequest bequeaths assets that remain in the estate after all other bequests as well as any tax or administrative costs have been satisfied.

Contingent Bequest

A contingent bequest devises property only when those named as primary beneficiaries predecease the testator or if the named beneficiaries waive or disclaim the bequest provision.

Bequests and Probate

Bequests, of course, are subject to the delay of the "probate" process. Probate is the legal procedure by which a court supervises the disposition of the terms of a will.

The probate process varies from state to state but typically results in both time delays and possible reduction to the estate as a result of the various expenses (e.g., court costs, legal fees, appraisals, etc.).

Some planned gift arrangements may provide a gift to charity upon the death of the donor (similar to a bequest), but escape the probate process. See "Bequest Substitutes" in this section for a discussion of these gift arrangements.

Of course, just because a will is subject to probate does not necessarily mean that estate taxes are owed. Estate tax liability depends on the value of the estate (which includes both probate and non-probate assets) at the donor's death and whether the estate will be subject to tax on the federal and/or state level.

Property That Passes Outside the Will

Certain kinds of property pass outside the will by virtue of contractual rights or operation of law, including:

image\bullet.jpg Life insurance death proceeds payable to a named beneficiary (though not if the estate itself is the beneficiary).

image\bullet.jpg Property held in a trust set up by the decedent

image\bullet.jpg Property held in joint names with rights of survivorship in the surviving joint owner(s)

image\bullet.jpg Property held in an IRA or qualified retirement plan with a named beneficiary

Fast Facts about Bequests

According to recent statistics compiled by Giving USA:

image\bullet.jpg Total giving reached an estimated $485 billion (2021)—despite the pandemic and the ensuing economic crisis.

image\bullet.jpg Bequest giving amounted to $46 billion—roughly 9% of total gifts (2021).

What Is Intestacy?

A person who dies without a valid will is said to have died intestate. The probate court will then distribute the decedent’s property under the intestate succession statutes of the state. These statutes do not take the decedent’s unique personal situation into account, meaning that such a distribution is unlikely to be in total accord with the decedent's wishes.

The intestacy statutes only take family relationships into consideration, while ignoring all other factors such as taxes, administration costs, or estate shrinkage.

The Price of Dying Intestate

There are many costs to dying without a will. Let’s look at some examples.

The Spouse May Not Get Enough

Suppose a man has a wife and two minor children. If he were to die without a will, he would probably be shocked to learn that, in many states, his wife would only receive one-third of his probate property. The other two-thirds would go to the children under the intestacy laws.

No Consideration of Special Needs

Suppose a widow leaves two children—one healthy and one with a physical handicap. A will could recognize the greater needs of the handicapped child, but the intestacy laws will treat the children equally.

No Distribution of Specific Assets to Specific Recipients

Aunt Martha would like a valuable necklace to go to her favorite niece. She can accomplish this in a will, but the intestacy laws would not recognize Aunt Martha's intentions for specific assets.

The Court Will Appoint an Administrator

A person who executes a will has the opportunity to nominate an executor. In the absence of a will, the court will appoint an administrator who may or may not be someone the decedent would have named.

The Estate May Shrink through Fees and Loss of Value

Intestacy can make estate administration more difficult, and that could translate into higher fees for the administrator of the estate and higher legal fees. The administrator will have the minimum powers granted by law, not the broader powers that could be extended by will. So, the administrator generally has less flexibility in dealing with estate assets, and this may result in a loss of value or the sale of estate assets at a liquidation price.

Without Heirs, the State Keeps the Assets

If the decedent leaves no heirs, as defined by the intestacy statutes, the decedent's assets (after payment of debts and expenses) pass ("escheat") to the state. The states allow a grace period for heirs to "turn up" and challenge the escheat. However, by not executing a will, the decedent lost the opportunity to make a bequest of estate assets to a charity, friend or other beneficiary.

Division of Intestate Property

All 50 states and the District of Columbia address the disposition of real and personal property in the event an individual dies intestate. State statutes vary widely in this regard, and even with the advent of the Uniform Probate Code, many use antiquated terms, making the rules difficult to understand.

Click here to access the state digests and concise summaries of each state's intestacy rules.

Each state describes how heirs are awarded property—typically (and in various orders) to the spouse, children, descendants, parents and siblings. If no heirs can be found among these individuals, state laws go to great lengths to recognize ancestral heirs before awarding property to the state through "escheat" provisions.

Each state also addresses distribution to heirs and descendants who have predeceased the individual that died intestate. States generally follow one of three main patterns that base distribution on the share that would have been distributed to predeceased heirs had they survived to take a share. The graphics illustrate the how these patterns operate.

Strict Per Stirpes

Under this ancient regime (sometimes called "English per stirpes"), the estate is divided among the first generation with surviving members or members with surviving descendants. Living heirs take their share. The portions belonging to deceased heirs with descendants pass to the living members of the next generation (by bloodline).

In the graphic, when George dies, the first generation with surviving members or members with surviving descendants is Generation 1—Benjamin, Betsy and Ross. While all in this generation have predeceased George, two of the three (Betsy and Ross) have living descendants, and George's $150,000 estate is divided equally ($75,000 each) between them.

Since Betsy is not living, her $75,000 portion would have gone to Bart. However, since he is also deceased, the $75,000 is split equally between his children—Bonnie, Bernie and Bill ($25,000 each).

Since Ross is also not living, his $75,000 portion is divided between his sons, Rex and Ralph. Ralph keeps his $37,500 portion. However, since Rex is deceased, his children Rhonda and Ringo split his $37,500 portion equally ($18,750 each).

Note that the members of Generation 3 do not take equal amounts despite being at the same generational level, and Rachel takes nothing since Ralph is alive to accept his portion.

Per Capita by Representation

This more modern version of strict per stirpes distribution is sometimes referred to as "American per stirpes." Here, the estate is first divided at the first level where there are surviving descendants. The estate is then divided according to the strict per stirpes rule.

In the graphic, the first generation with surviving members is Generation 2, where Bart, Rex and Ralph all have surviving children. The estate is divided in three equal parts between Bart, Rex and Ralph (instead of two parts, as under the strict per stirpes method), with each receiving $50,000. Ralph keeps his portion, but since Bart and Rex are deceased, their portions are divided equally among their children.

Note that this method also results in unequal distribution to Generation 3, with Bonnie, Bernie and Bill each receiving $16,667, Rhonda and Ringo each receiving $25,000, and Rachel receiving nothing (since her father, Ralph, is alive to keep his share).

Per Capita at Each Generation

This method results in equal treatment of Generation 3. The estate is divided as in the per capita by representation regime, but any shares that drop to the next generation due to a predeceased ancestor are first pooled and then divided among members of that generation

In the graphic, the first generation with surviving members is Generation 2, so the estate is again divided in three equal parts, with Bart, Rex and Ralph each taking $50,000. Ralph is alive to keep his share, but Rex and Bart are deceased. Instead of proceeding with a per stirpes distribution, the portions belonging to Rex and Bart are first pooled, then distributed equally to their children—Bill, Bernie, Bonnie, Rhonda and Ringo each take an identical share of $20,000 ($100,000 divided by 5). Again, Rachel takes nothing since Ralph is living.

Additional Guidelines

Adopted children will normally take a child's full intestate share from the estates of both the adoptive parents and, in some states, from the estates of the natural (biological) parents as well.

A child born after the death of a parent will also take a child's full intestate share from the estate of the deceased parent.

image\bullet.jpg Illegitimate children in most states will take a child's full intestate share from the mother's estate, but not the father's estate unless:

image\bullet.jpg the father has acknowledged the child as his,

image\bullet.jpg a court has ruled him to be the father, or

image\bullet.jpg the father married the mother after the child was born.

Why People Need to Make a Will

Not only does a will make it possible to provide charitable bequests to favored charities, but there are many other sound reasons for a person to make a will, including:

image\bullet.jpg an executor of the estate can be nominated to handle one's business affairs after death

image\bullet.jpg a guardian can be nominated for any minor children who survive the decedent

image\bullet.jpg trusts can be established to invest and manage assets for the benefit of beneficiaries

image\bullet.jpg specific bequests other than those to charity can be provided (e.g., a family heirloom can be left to an appropriate family member)

image\bullet.jpg a will can help save taxes, probate expenses and other costs that attend death.

Why People Don't Have Wills

With all that's been written about the advantages of "will planning," it's puzzling to discover that nearly half of American adults do not have a will—a statistic that has remained steady for decades.

In some instances, people find it uncomfortable to contemplate their own mortality. Others don't like the thought of talking with an attorney or fear that it will cost too much. Then there is simply the difficulty of deciding who gets what—and how the beneficiaries are going to react. Put all these factors together and procrastination is often the result.

Further complicating the matter are the misconceptions that many people have about wills. Here are some of the more common ones along with the reasons why they are invalid:

Don't Have Enough Assets

This is often cited as a reason but seldom valid. Actually, the smaller one's estate is the more important it is to make sure that assets are distributed with the least cost. In a small estate, intestacy might lead to inefficiencies that would only deplete assets further.

Spouse Will Automatically Get Everything

This is a dubious assumption at best. Without a will, the laws of intestacy will come into play. And, under some state laws, the distribution of the estate might be split between the surviving spouse of a second marriage and the children of the first marriage.

The Property I Own Is Jointly Held

True, jointly held property with rights of survivorship passes outside the will. But not all assets are jointly held. What's more, should both parties be killed in a common disaster, then the assets would be distributed according to the laws of intestacy unless their wills direct otherwise. The same result occurs when one spouse dies, then the other spouse dies without having subsequently made a will.

A Single Person Doesn't Need A Will

The laws of intestacy also apply to the unmarried—including widows, divorced people, and those who have never married. Who knows what relatives—including unknown or disliked relatives—may share in the estate of an unmarried person who dies intestate.

Appropriate Bequest Property

Just about any type of property can be used to make a charitable bequest (although charities may not accept some types of property.) Certain types of property, however, are uniquely appropriate for charitable bequests.

Tangible Personal Property

Tangible personal property (e.g., artwork, collectibles, antiques, etc.) may be given to a charity by bequest. Bequests of tangible personal property qualify for the estate tax charitable deduction for the current full appraised value without regard to whether the charity puts the property to a "related use" as is required for the income tax charitable deduction.

Ordinary Income Property

Ordinary income property (e.g., artwork or a copyright by the original artist or author) given by bequest is also deductible at the current full appraised value for purposes of the estate tax charitable deduction. The reduction of the deemed amount of the contribution to cost basis required for the income tax charitable deduction does not apply for estate tax purposes.

Depressed Value Property

Since heirs cannot benefit from a step-up in basis with depressed property, property that has experienced a loss in value may be particularly appropriate for a charitable bequest. This is in sharp contrast to appreciated property. Here's why: Heirs benefit greatly when they receive appreciated property because appreciated property enjoys a step-up in basis (to the value on the date of the donor's death or the alternate valuation date). As such, when choosing between appreciated property and property that is depressed in value, bequests of appreciated property may be more appropriate for heirs than they are for charity.

Income in Respect of a Decedent (IRD)

Income in Respect of a Decedent (IRD) property is also appropriate for a charitable bequest. IRD is inherited property that would have been taxable income to the decedent if the decedent had received it before death.

If a will designates IRD assets for charitable bequest, the estate receives both an estate tax charitable deduction as well as an income tax charitable deduction. Other non-IRD assets are better to bequeath to non-charitable heirs.

Examples of IRD include:

image\bullet.jpg The final salary check prior to death

image\bullet.jpg U.S. savings bonds

image\bullet.jpg Qualified retirement plans

image\bullet.jpg Traditional IRAs

image\bullet.jpg Deferred compensation

image\bullet.jpg Accounts receivable

Of all of these assets, U.S. savings bonds, retirement plans, and IRAs represent the most significant potential for charitable gifts due to the immense wealth invested in these assets. Some important strategies must be considered for each.

U.S. Savings Bonds

U.S. savings bonds must be specifically bequeathed to charity in order to escape the deferred income tax. A general charitable bequest satisfied by these bonds at the discretion of an executor or trustee of the estate will not escape the income tax liability.

The IRS has announced that Series E United States Savings Bonds are to be valued at their redemption price for estate tax purposes, without allowing discounts for lack of marketability or income tax liability [TAM 200303010]. Individuals may be more inclined to bequeath these bonds to a charitable organization because the bequest qualifies for an estate tax charitable deduction at the bond’s redemption value. Otherwise, the value of the bondsimage\emdash.jpgwithout the benefit of a valuation discountimage\emdash.jpg would increase the size of the taxable estate.

Qualified Retirement Plans

Qualified retirement plans include defined benefit, 401(k), money-purchase, profit sharing and Employee Stock Ownership plans. Other arrangements such as nonqualified deferred compensation, 403(b) annuities, 457(b) plans, traditional and Roth IRAs are also sources of wealth for many people. There are effective ways to make charitable bequests of these assets:

1. The owner can designate a charity as the "named beneficiary" of a retirement plan arrangement. This designation controls the distribution of the assets (instructions left in a will or trust have no effect if the estate or trust is not the named beneficiary of the retirement asset). The plan or account administrator will have a beneficiary designation form for the owner to complete. This is the straightforward way to do it.

2. The owner can designate the estate or a trust as the named beneficiary of a retirement plan arrangement and include language within the will or trust that permits the executor or trustee to make income distributions and effectively claim the income estate tax charitable deduction for the IRD-plagued asset that goes to charity.

Click here to display a graphic which illustrates Income in Respect of a Decedent (IRD).

Bequest Language

A charitable bequest must conform to IRS rules to qualify for an estate tax charitable deduction. The IRS rules are listed in both the Internal Revenue Code and an accompanying regulation. Under IRC Sec. 2055(a), "The value of the taxable estate shall be determined by deducting from the value of the gross estate the amount of all bequests, legacies, devises and transfers (to qualified charitable organizations)."

Be aware that charitable bequest language which fails to comply with IRS rules can jeopardize the estate tax charitable deduction, even if a gift actually goes to the charity. The following are examples of language that does not qualify for the deduction.

1. Unascertainable Amount of Charitable Bequest

By failing to specify an amount to be bequeathed to a charitable organization, the charitable transfer is actually accomplished by a third party (e.g. the executor), rather than the decedent as required under IRS rules.

2. Unascertainable Charitable Beneficiary

Suppose a bequest includes this language, "To Mary, to be distributed to whatever charity she deems worthy." Recalling IRS rules, one would assume such a charitable transfer would fail to qualify for an estate tax charitable deduction because a third party (Mary), rather than the decedent would make the charitable transfer. However, such bequests do qualify for an estate tax deduction provided that (as defined under local law):

image\bullet.jpg The third party is holding the property as a trustee; and

image\bullet.jpg The third party has an obligation to transfer the property to charitable organizations eligible for the IRC Sec. 2055 deduction [Rev. Rul. 69-285, 1969-1 C.B. 222].

3. Conditional Bequests

Bequest language is conditional or contingent if the charitable transfer relies upon the nonoccurence or occurrence of some event. The insertion of a conditional or contingent bequest will not jeopardize an estate's charitable deduction as long as the possibility that the charity will not receive the charitable bequest is "so remote as to be negligible when it is determined on the decedent's date of death" [Reg. Sec. 20.2055-2(b)(1)].

4. Split-interest Bequests

A split-interest bequest is a bequest shared between both charitable and non-charitable recipients. Split-interest bequests only qualify for an estate tax charitable deduction if created in one of the following forms:

image\bullet.jpg An undivided portion of the decedent's entire interest in property

image\bullet.jpg A remainder interest in a personal residence or farm (not required to be transferred by trust)

image\bullet.jpg A remainder interest in a charitable remainder unitrust, charitable remainder annuity trust, or a pooled income fund

image\bullet.jpg A guaranteed annuity interest or unitrust interest in a charitable lead trust

5. Bequests to Nonqualified Charitable Organizations

IRS rules require a charitable bequest be made to a qualified charitable organization to qualify for an estate tax charitable deduction. The list of qualified charitable organizations, as set out under IRC Sec. 2055, mirrors the list of qualified charitable organizations under both income tax and gift tax rules. However, slight variations exist. Unlike with income tax rules, nonprofit cemetery corporations are not considered to be qualified organizations under estate tax rules. Additionally, charitable beneficiaries are not required to be domestic corporations under estate tax rules. Finally, charitable bequests to foreign countries only qualify for an estate tax charitable deduction if the bequest is limited to exclusively charitable purposes (with the exception of similar bequests made by nonresident aliens).

Click here for a list of qualified charitable organizations under estate tax rules.

6. Bequests to Individuals

An estate will not qualify for an estate tax charitable deduction made to an individual doing charitable works, rather than the actual qualified charitable organization.

For example, an estate oftentimes will bequeath property to a missionary, which does not qualify the estate for a charitable deduction on the transfer. However, the courts have made certain exceptions.

Bequest Substitutes

A written statement in a will is the most common bequest format. However, other gift arrangements also allow a gift to be made to charity upon the death of the donor. The advantage of these other techniques is that the gift to charity avoids the time delay of probate.

Revocable Trusts

Many individuals include bequest provisions for a charity in their revocable inter vivos or "living" trusts. These trusts are advocated by some as a mechanism to avoid the probate process that is required for the disposition of wills. This avoids the costs and public scrutiny of probate. Further, trusts allow for the management of the trust assets by a trustee when the beneficiaries of the trust are considered incapable of effective management.

Click here for more information on revocable trusts.

Life Insurance

A charity may be named the beneficiary for a newly issued life insurance policy (depending on applicable state law) or an existing policy. The donor can enjoy a lifetime income tax charitable deduction, however, only by making a complete and irrevocable assignment of ownership in the policy to charity.

Click here for more information about gifts of life insurance.

Retirement Plans and IRA Assets

A charity (or a charitable remainder trust) may be named as beneficiary for all or a portion of a qualified retirement plan or an IRA. Such a gift has two significant tax benefits. First, the amount received by charity qualifies for the unlimited estate tax charitable deduction. Also, the charity will receive the assets without the imposition of the income tax that had been deferred.

If retirement plans and/or IRA assets are given to children or others as beneficiaries, then the heirs of such assets will owe the income tax which had been deferred during the donors lifetime. As such, these assets are considered "income in respect of a decedent" (IRD).

Uniform Transfer on Death Securities Act

Nearly every state (except Louisiana and Texas) allows automatic transfer on death ("TOD") of stocks, bonds and mutual fund shares to charities outside the operation of a will.

Payment on Death (POD) Account

Many states allow a donor to designate a charity to receive the proceeds from a bank account (e.g., checking, savings, certificate of deposit, etc.) upon the death of the donor. A POD designation is revocable and the distribution avoids the probate process.

Qualified Disclaimers by an Individual Heir

Heirs to an estate may disclaim all or a portion of their inheritance or bequest, allowing these funds to be directed to a charity instead. Such disclaimers must comply with the applicable state law as to the form and timing.

Testamentary Power of Appointment

The executor of an estate or another person, by the terms of the will, may be granted the ability to appoint distributions from an estate to others, including charities. The power of appointment must be provided for in the will and comply with applicable state law as to the form and timing.

Remainder Interest in Farm or Personal Residence

A donor may transfer by deed a remainder interest in a personal residence or farm to a charity while retaining a life estate interest. This remainder interest would pass automatically to the charity upon the death of the donor. This effectively avoids the probate process.

Click here for more information on gifts of a remainder interest.

Charitable Bequests & Estate Taxes

Charitable bequests do not qualify for an income tax charitable deduction because they are revocable. They do, however, qualify for an estate tax charitable deduction.

The importance of the estate tax charitable deduction can be illustrated by a simplified example:

With Charitable Bequest:


Total assets



Charitable bequest



Total estate



Estate tax exemption (2023)


($5,113,800 equivalent tax credit)

Estate tax prior to credit



Estate taxes



Total to heirs




Without Charitable Bequest:


Total assets



Total estate



Estate tax exemption (2023)


($5,113,800 equivalent tax credit)

Estate tax prior to credit



Estate taxes



Total to heirs






Reduction in estate tax* due to bequest



*The estate tax rate is 40% in 2023.

Click here for the 2023 federal estate and gift tax rate schedule.

Unlimited Deduction for Bequests to Qualified Organizations

The primary tax advantage for a gift by bequest is an unlimited estate tax charitable deduction, so long as the gift is directed to a qualified charitable organization as defined in the Internal Revenue Code.

 For a complete discussion of the gift and estate tax charitable deductions, click here to jump to Gift & Estate Planning Concepts.

Bequests From Donor

To be estate tax deductible, a bequest to charity must pass to charity by direction from the decedent (donor) and not be directed to charity by another heir from his/her personal funds received by bequest from the donor.

No Percentage Limitations

The estate tax charitable deduction is not subject to overall percentage limitations similar to those that may affect the income tax charitable deduction. Thus, if a person left his/her entire net estate to charity, it would be fully deductible regardless of the size of the net estate.

Payment of Taxes and Other Estate Administration Costs

The donor may provide by the terms of the will that the charitable bequest not be reduced by the payment of estate taxes or other estate administration expenses. In fact, such a provision should be encouraged to preserve the gift and the donor's estate tax charitable deduction. If taxes or other costs are paid from the bequest to charity, the deductible amount will have to be reduced to the extent it is invaded to pay taxes and other costs.

Using Bequests to Satisfy a Lifetime Pledge

If an executor uses estate funds to satisfy or complete a lifetime charitable pledge by the decedent, the transfer does not entitle the estate to an estate tax charitable deduction. However, the payment of the pledge may be deductible as a claim against the estate.

Note: The donor may specifically provide a bequest to charity to fulfill a lifetime gift pledge and qualify for the unlimited estate tax charitable deduction. For example, the will could be revised each year (using an amendment to the will called a codicil) to reflect the current balance owed on the pledge.

Advantages of Bequests

Simple to Understand

Most donors do not have to worry about minimum amounts or complex tax rules that apply to life income plan arrangements and outright non-cash gifts.

Lifetime Control

Donors maintain the use of property during life. There is no immediate out-of-pocket cost or disruption of lifestyle, and donors have the final say in the ultimate direction of "social capital" rather than abdicating this responsibility to the state.


One of the primary advantages of bequests for a donor is the fact that the bequest is revocable or may be changed as circumstances and personal goals change. This revocability enhances the flexibility of the bequest.

Flexible Format

A bequest is also flexible in that it may be of any amount and may take many forms. Basic forms of bequests are:

image\bullet.jpg Outright or qualified partial interest bequests; and

image\bullet.jpg Specific, percentage, contingent or residual.

Ease of Implementation

If the prospective donor already has a will, a charitable bequest can be added through a simple codicil (an amendment to a will). If there is no will, an attorney can incorporate the charitable bequest when creating a will.

Memorial and Endowment Gifts

Planning opportunities with bequests include the ability of the donor to restrict the gift for purposes such as a permanent endowment fund or as a memorial gift in honor or memory of a loved one. To be sure that the donor's intentions are realized, the donor should inform the charity about the included bequest.

Establish Life Income Plans or a Lead Trust

A bequest from a will or trust may also be used to establish a testamentary charitable remainder trust or testamentary charitable lead trust upon the death of the donor. Pooled income fund bequests may also be funded through a will or trust provision. However, there may reasons to avoid establishing a charitable gift annuity through a will or trust bequest, especially if the annuitant is the surviving spouse, since the unlimited marital deduction is not available for a terminable interest unless rigid requirements are met.



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