Legal Question in Wills and Trusts in Massachusetts

Re: How do you incorporate an outside list of personal property bequests into yo

Are you a lawyer? Your vocabulary suggests this:

incorporate by reference, bequests, holographic, etc. (Read up on adeem & ademption!)

What you suggest is, more or less, quite common. It is not "incorporation by reference" in that the extra list that doesn't meet will formalities and won't be enforced in a court of law. However, in the will you can ask your executor to find the list & keep it in mind, & even adhere to it faithfully if you want; if you put the list in your own handwriting and for a little extra security you say so in the will, that's a plus (versus cousin Eddy showing up with a print0out from his Mac saying "Everything to Eddie")!

I generally make the executor's adherence to the list "merely precatory". (Were you awake that whole semester?) Requiring the executor adhere to it would not likely be enforced so I write "if it is my fervant wish that" ... but I also make clear that such wish is not intended to limit the absolute discretion I vest within him or her.

Sometimes the most valuable thing that was meant for your favorite child will have been stolen, lost, sold, unaccounted for, or even given to that child while you're in a tent at the hospital or while drooling at the nursing home, so make instructions for executor if you can but it's still best that s/he have that authority to wing it. Anyway, this helps keeps the court of it, too.

Deed over certain items (of value) while you're alive, too, filling out gift tax returns if they exceed $10,000 in value or if you'll split the gift with your spouse. If you don't hold onto those items, they are out of your taxable estate, too.

CONTINUED NEXT MESSAGE ( I'm [email protected]).

Re: How do you incorporate an outside list of personal property bequests into yo

CONTINUATION: 2 of 2!

I don't like to state where the list is unless I know who has access to that place; I often like to keep it with the will because the will is often made accessible only by trusted parties anyway.

In Mass., you can file the will with a probate court ($40) which is pretty darned safe and you can keep the list in the same envelope there but it means an extra trip every time you want to change it. More clever is to file a paper there which tells the secret hiding place of the list, and maybe have the will specify a different secret hiding place as well ... then you be sure to update the list in both places each time you change it.

Maybe you'd prefer to have your will pour over personal property into a trust and have the trustee dole out the gifts according to terms of the trust; the trust can be modified with few formalities; you do sign it, but you don't even need witnesses or a notary unless you want them.

What if an item is sold out of your 'estate' shortly before your death; do you want the proceeds to go to whoever you'd listed would get that item?

Don't put any real estate interest on such a list, of course, nor anything else that would violate the statute of frauds.

Any more questions, feel free to call or write to me directly at [email protected] any time. (If you want to retain me for advice, I generally advise other attorneys for $50 / hour. Remind me!) I'm Stuart J. Williams in Newton, [email protected].