Understanding the Problem
You want to direct specific household items, such as jewelry or furniture, to one child without rewriting your entire will. Your current will leaves the rest of your personal property to two children equally, so the question is whether a separate memorandum can remove particular items from that equal division.
Apply the Law
North Carolina permits a will to incorporate a separate writing by reference, but the writing must already exist when the will is executed. The will must also show an intent to incorporate that writing and describe it well enough to identify it.
Key Requirements
- Existing writing: The memorandum must have existed when you executed the will.
- Intent in the will: The will must show that you intended to incorporate the memorandum.
- Identifiable document: The will must describe the memorandum sufficiently to permit its identification.
- Clear directions: The memorandum should identify each item and recipient precisely to reduce the risk of confusion or disagreement.
- No later informal changes: Do not assume that a memorandum created or revised after the will was signed will control the distribution.
What the Statutes Say
- N.C. Gen. Stat. § 31-51 (Incorporation by reference) allows a will to incorporate a writing that existed when the will was executed if the will manifests that intent and describes the writing sufficiently to identify it.
- N.C. Gen. Stat. § 31-3.3 (Attested written will) sets the signing and witness requirements for an attested written will.
- N.C. Gen. Stat. § 28A-2A-2 (Executor failing, beneficiary may apply) permits a devisee or another person interested in the estate to apply for probate, after giving the executor 10 days’ notice, if no executor applies within 60 days after death.
Analysis
Because your will leaves the rest of your personal property to two children equally, a memorandum can direct particular items to one child only if it qualifies as a writing incorporated into the will. If the memorandum did not exist when you signed the will, or the will does not adequately identify it, relying on the list could leave the jewelry, furniture, or other items subject to the will’s equal-distribution provision.
Process & Timing
- Review the will to determine whether it expressly incorporates a separate memorandum and how that document is described.
- Confirm whether the identified memorandum existed when the will was executed.
- Make sure the memorandum clearly identifies each item and the child who should receive it.
- If no qualifying memorandum existed at execution, consult an estate planning attorney about using a properly executed codicil or replacement will rather than relying on a new informal list.
- After death, the named executor may apply to the Clerk of Superior Court with jurisdiction to have the will admitted to probate. If no executor applies within 60 days, a devisee or another interested person may apply after giving the executor 10 days’ notice.
Exceptions & Pitfalls
- A memorandum created after the will was executed does not satisfy the requirement that an incorporated writing already exist at execution.
- A general reference to an unidentified future list may not satisfy the statutory identification requirement.
- Ambiguous descriptions can cause disputes, so identify both the property and recipient precisely.
- Do not assume that dating or signing a later list makes it part of the existing will.
- If the will itself already contains instructions for a particular item, have an attorney review the documents before attempting to change that gift through a memorandum.
Conclusion
North Carolina’s verified rule allows a personal property memorandum to operate through incorporation by reference only when the writing existed when the will was executed and the will clearly intended to incorporate and identify it. Therefore, an existing qualifying memorandum may direct jewelry, furniture, or other items to one child, but a later-created or revised list should not be relied upon. Have an estate planning attorney review the will and memorandum and determine whether a codicil or replacement will is the appropriate next step.
Talk to an Estate Planning Attorney
If you want to leave particular heirlooms or personal effects to one child, call 919-341-7055 to request a free case evaluation and discuss whether your will and memorandum will accomplish that goal.
