How Personal Property Memorandums Work Alongside a Will

You may want your daughter to receive a particular necklace, your nephew to have your record collection, or a close friend to keep a piece of artwork without filling your will with a long inventory of belongings. In Illinois, a tangible personal property memorandum or separate list generally has legal effect as part of a will only if the will incorporates it and the list already exists when you sign the will. 

At Zapolis and Associates PC, we can help you decide how to document specific gifts and make sure those instructions work with the rest of your estate plan. For clients in Mokena and the surrounding areas, that often starts with reviewing an existing will and personal property memorandum together. Schedule a consultation today to learn your options.

The Will Must Incorporate an Existing List

Illinois does not have a statute like those in some states that specifically allows a will to refer to a personal property list that can be created or revised later. Instead, a separate writing can become part of a will through the legal doctrine of incorporation by reference. 

In In re Estate of Phelan (2007), the Illinois Appellate Court explained that the will must refer to the separate document as existing when the will is executed, identify it sufficiently, and show an intention to make it part of the will. The document must actually exist at that time and correspond to the document described in the will. 

Illinois requires the document to exist when the will is executed because allowing someone to incorporate a future document would effectively permit property to be disposed of through a later writing that was never executed with the formalities required to execute an Illinois will. 

Later Versions Do Not Automatically Replace the Original

A list incorporated into your will does not automatically change when you revise or replace it later. The will incorporates the document that existed when the will was executed, not a later version. 

Suppose your incorporated list gives a grandfather clock to one child and a painting to another. If you later replace the list or cross out one recipient and write in someone else, you should not assume those changes have become part of your will. 

An incorporated memorandum is therefore less flexible than the freely updatable personal property lists permitted in some other states. If your wishes change, our estate planning services can help you update your documents so the new instructions have the intended legal effect. 

Specific Descriptions Clarify Who Gets What

Clearly identifying both the property and its intended recipient reduces uncertainty about which gift goes to whom. 

If you own several rings, for example, “my ring to Anna” leaves an obvious question. “My grandmother's oval sapphire ring to Anna” gives the person administering your estate much clearer direction. Recipients should also be identified clearly enough to distinguish between relatives or friends with similar names. 

For a particularly valuable item or property that family members may disagree about, addressing the gift directly in the will or through another appropriate estate-planning method may provide greater certainty. 

A Nonbinding List Can Still Express Your Wishes

Not every personal property list has to function as a legally incorporated part of a will. Another approach is to leave a memorandum expressing how you would like particular belongings distributed without making the list legally controlling. 

That offers more flexibility because you can revise your wishes without treating every change as an amendment to your will. The tradeoff is enforceability. If the memorandum is merely an expression of wishes, the person legally entitled to the property or responsible for administering the estate is not bound by the list in the same way as by a valid testamentary provision. 

For some families, that may be sufficient for ordinary household items or sentimental possessions. For an item that you strongly want a particular person to receive, relying only on a nonbinding request creates more uncertainty. Decide which items need a binding gift and which can rely on a request. 

The Will Handles What the List Does Not

Property that is not effectively disposed of through the memorandum may instead pass under the applicable provisions of your will. 

Suppose an incorporated list addresses six pieces of jewelry and several works of art but says nothing about the rest of your household belongings. The applicable provisions of your will may determine who receives those remaining possessions. 

An ineffective attempt to incorporate a memorandum can have a similar result. The property does not automatically pass according to the separate list simply because your intentions appear there. Another provision of the will may control, and if the will does not dispose of the property, Illinois intestacy rules may become relevant. 

This is why the memorandum and will need to be considered together. What matters is the legal role the memorandum plays in your estate plan. 

Plan Personal Property Gifts With Zapolis and Associates PC

If you want specific belongings to go to certain people, your estate plan should make the legal effect of those instructions clear. We can help you determine whether to address those gifts directly in your will, through a properly incorporated writing, or through another approach suited to your goals. 

Our attorneys, Robert J. Zapolis and Briane E. Eggert, bring extensive experience to our estate planning practice. With more than 40 years of estate planning experience and a practice that includes probate and estate administration, wills, and trusts, we help clients address a range of estate planning needs. From our Mokena office, we serve clients in Will County, Kankakee County, and Cook County. 

Contact our Mokena estate planning attorneys to review how your will addresses specific belongings and whether a separate memorandum belongs in your estate plan.