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The Power of a Written List

estate planning wills Sep 25, 2019

When thinking of the legacies you are leaving people, it can be difficult to decide what to give and to whom. Money is often a large part of inheritance, but perhaps there are certain items you wish to bequeath to family and friends as a way to remember you. To whom and what you bequeath is an important consideration that is worthy of as much time as is put into considering your residuary beneficiaries. 

What are the main concerns?

What you leave to your loved ones after your passing can define the legacy left to them. Being too ambiguous in leaving heirlooms opens the door for litigation and disputes over the distribution of your personal property after you pass.  While it is possible and recommended to bequeath items you know you want to pass on in your Will, your collections and personal property may change from when you have a Will created and when you pass. It is always possible to leave a memorandum that directs your executor to distribute your personal property in a certain way. However, this memorandum is only morally binding upon your executor, not legally binding, because it does not form part of your Will and may be revised at any occasion with no need to follow formalities. This means the Executor can use their discretion with respect to adherence to your memorandum. It also means that the items you have gifted in your memorandum still forms part of your residual Estate, which goes to your residual beneficiaries. They and the Executor will need to recognize your wishes for the items in your Memorandum.

Availing the Concerns

  • Creating a Memorandum gives you the flexibility to update and change gifts without having to execute a new Will. Placing the Memorandum with the Will ensures the Executor can find it, and hopefully the person you have chosen will follow your wishes with respect to the gifts.
  • It is important to know that edits to a Memorandum may be questioned for authenticity, if you make a change to a gift is it best to print a new Memorandum instead of edit and sign the original. 
  • Be very clear in what you are leaving and to whom. Use the name and the relationship to the person in your Memorandum to avoid any confusion. 
  • To avoid conflict with residual beneficiaries, you can explicitly remove household goods and personal effects from the residue with instructions to your Executor to use discretion in distributing the goods and effects guided by your Memorandum. 
    • Remember, the Memorandum is still only morally binding. It is not legally binding. 

For help with creating a Will or Memorandum, or for any estate planning questions in general, please contact our lawyers at Estate Connection for an appointment. We are well versed in Estate Law and are here to help!


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