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Wednesday, January 12, 2011

Do I attach a list of specific gifts to the application for probate?

Although most assets are given away in a Will, many people choose to make (in addition to the Will) a list of specific personal or household items that they want to give to certain people.  For example, a woman might wish to leave her wedding ring to her daughter.

A list like that is a separate document from the Will. They are usually handwritten by the testator. I was recently asked whether the executor must include the list along with the Will when the executor is applying for probate. The answer can be either "yes" or "no", depending on the facts.

The executor DOES have to include the list (which is legally called a Memorandum of Personal Effects) if:
  •  the testator made and signed the list before he/she signed the Will, and
  •  the Will specifically refers to the list by saying that it is incorporated by reference.
The fact that the list is incorporated by reference means that it is included as part of the Will even though it was done before the Will document. Because it's now legally considered part of the Will, the executor has to include it when he or she probates the Will. 

Many lists of specific gifts are NOT incorporated by reference. If you make your list after you make your Will, it is not incorporated by reference. If the Will doesn't refer to the list, it isn't incorporated by reference. The non-incorporated list is very popular because it is so flexible; the testator can change the contents of the list as many times as he or she wishes without having to change the Will. In these cases, if the Will says anything about a list or Memorandum, it probably says something like "I may make a Memorandum giving specific items to certain people."

If an executor were to apply for a Grant of Probate on an estate that had a Memorandum that was NOT incorporated by reference, he or she likely wouldn't be required to include the list in the application, but should probably do so anyway, barring unusual circumstances. It's best to give the judge and the residuary beneficiaries the whole picture of the estate. If the Will says that the testator "may make a Memorandum" but one hasn't been found, include a sentence in your application for probate that states that you searched for a list but didn't find one.

This post isn't intended to be a recommendation of any kind about which type of list you should make, if any. There are plenty of reasons to use one or the other. I'll leave that for another day. Today's post is intended only to give executors some ideas about how they might deal with a list/Memorandum during the probate application.

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