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Can a personal property list transfer investments or real estate?

Key takeaway

No. In Minnesota, for example, a separate personal property list referenced in a will cannot transfer investments or real estate because its scope is limited to qualifying tangible personal property. Other states differ.

Start by identifying the items you want to leave and the state law you need to review. The examples below show why the document reference, item descriptions and excluded property deserve separate attention.

Minnesota: qualifying belongings and a will reference

In Minnesota, for example, a will may refer to a separate writing for tangible personal property not otherwise specifically disposed of by the will. Money, coin collections and property used in trade or business are excluded. Other states differ.

In Minnesota, for example, the writing must be referenced in the will, be handwritten or signed by the person making the will, and identify the items and recipients with reasonable certainty. Other states differ.

In Minnesota, for example, the writing may be prepared before or after the will and changed later. If writings conflict about an item, the most recent controls that item. Other states differ.

Oregon: household items and explicit exclusions

In Oregon, subject to contrary provisions in a valid will, a separate writing may dispose of household items, furniture, furnishings and personal effects. The will must reference it, and the person making the will must sign it.

The Oregon writing must describe the eligible items and intended recipients with reasonable certainty. Money, property used in trade or business, and items evidenced by documents or certificates of title are excluded.

Virginia: a will or qualifying trust reference

In Virginia, a will or a trust instrument that was revocable immediately before the settlor's death may reference a separate statement for tangible personal property not otherwise specifically bequeathed.

The Virginia statement must be signed by the person making the will or creating the trust and identify the items and intended recipients with reasonable certainty. It can take effect without ordinary will or trust execution formalities.

For this Virginia rule, general and residuary bequests do not count as specific bequests. The section excludes a writing admitted to probate as a will and otherwise preserves incorporation by reference law except as the section provides.

Personal representative

In Minnesota, for example, this estate fiduciary acts after appointment by a court or registrar, qualification and issuance of letters, and must prudently settle and distribute the estate under the probated will and applicable law. Other states differ.

Codicil

In Minnesota, for example, a codicil is included in the statutory meaning of a will, which also includes an instrument that only appoints an executor or revokes or revises another will. Other states differ.

Frequently asked questions

Can an Oregon list be electronic or changed later?

Yes, if it meets Oregon's requirements described above, including the will reference, signature, eligible property and reasonably certain descriptions. An electronic writing can be an electronic record, document or image.

The qualifying Oregon writing may be prepared before or after the will, changed later, and identified as existing or to exist at death. It may have no significance apart from its effect on the will's dispositions.

Can a Virginia statement be prepared after the will or trust?

Yes, a statement satisfying Virginia's requirements described above may be prepared before or after the will or qualifying trust instrument and altered by the person making it at any time.

The Virginia statement may be referenced as existing at death and have no independent significance. For distributions under a statement referenced in a will, a copy must accompany the legatee's receipt to the commissioner of accounts.

Can a separate writing amend a Minnesota revocable trust?

Yes. In Minnesota, for example, a revocable trust may be amended through a referenced writing disposing of qualifying tangible personal property not otherwise specifically disposed of by the settlor's will or trust instrument. Other states differ.

In Minnesota, for example, the writing must be in the settlor's handwriting or signed by the settlor and identify items and beneficiaries with reasonable certainty. Money, coin collections and property used in trade or business are excluded. Other states differ.

In Minnesota, for example, the writing may exist at death, precede or follow the trust instrument, be altered later, and have no independent significance. Multiple writings are permitted, with the most recent controlling conflicting gifts of an item. Other states differ.

What if a Virginia fiduciary distributes an item without knowing about the statement?

Virginia protects a personal representative or trustee who distributes tangible personal property to the apparent recipient under the will or trust without actual knowledge of the separate statement. The fiduciary has no duty to recover that property.

A person named for the property in an effective Virginia statement may sue the apparent recipient to recover it, or its value if recovery is impossible.

The Virginia suit must be brought within one year after probate for a statement referenced in a will, or within one year after the settlor's death for a statement referenced in a trust.

Sources

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