When a Brooklyn father passes away leaving a signed, handwritten letter in his desk drawer directing how his brokerage accounts should be divided, his family often assumes the matter is settled. The letter is sincere, clearly written, and undeniably in his handwriting. But when the surviving children present this document to a financial institution—or worse, attempt to enforce it in Surrogate’s Court—they hit a wall. Sincerity does not equal legality. In the eyes of the law, that informal letter is almost certainly not a valid trust.
Estate planning is a deliberate act of stewardship. Yet, we frequently see families discover letters, memos, or notes left by a deceased parent who intended to handle their affairs quietly. Attempting to bypass formal legal structures with a simple letter usually guarantees the exact opposite of what the parent wanted. Instead of a seamless transition of wealth, the family faces confusion, fractured relationships, and expensive litigation.
The Strict Statutory Requirements of a Trust
A trust is not simply a list of wishes. It is a binding legal arrangement where property is managed by one person—the trustee—for the benefit of another. Because this arrangement separates the legal ownership of property from the beneficial enjoyment of it, the law demands absolute certainty regarding the creator’s intent and the specific terms of the arrangement.
Under New York law—specifically the Estates, Powers and Trusts Law (EPTL) §7-1.17—the execution requirements for a lifetime trust are strict and unforgiving. The statute mandates that a lifetime trust must be in writing, but a mere signature at the bottom of a page is entirely insufficient. To be valid, the document must be executed by the creator and either acknowledged in the manner required for the recording of a conveyance of real property—typically before a notary public—or executed in the presence of two witnesses who also affix their signatures.
A letter left in a drawer or mailed to a family member almost never meets these statutory formalities. Without the proper acknowledgment or the signatures of two witnesses, the document is legally deficient. Surrogate’s Court cannot overlook these omissions simply because the deceased person’s handwriting is recognizable.
The Problem of Precatory Language
Beyond the lack of proper execution, letters almost always fail to create a trust because of the language they employ. Formal trust documents use mandatory, legally binding language that imposes strict fiduciary duties on the trustee. Letters rely on conversational phrasing.
We often see letters containing phrases like “I hope you will use this money to pay for your sister’s education,” or “I wish for the house to remain in the family.” In legal terms, these are known as precatory words. They express a desire, a hope, or a moral obligation, but they do not impose a binding legal duty. To create a trust, the language must be imperative. A court will not impose the severe liabilities of a fiduciary duty on someone based merely on a deceased parent’s expression of hope.
When an estate contains documents with precatory language, the result is predictable. One sibling believes the letter creates a binding obligation. The other believes it was merely a suggestion. Litigation ensues, draining the exact assets the parent was trying to protect.
Funding: The Missing Link in Informal Writings
Even if a letter miraculously contained the perfect mandatory language and was somehow notarized, it would likely still fail as a trust due to a lack of funding. A trust only controls the assets formally transferred into it.
In a proper estate plan, once the trust instrument is signed, we take deliberate steps to change the title of real estate, reassign ownership of brokerage accounts, and update beneficiary designations. A letter written on a Sunday afternoon does none of this. You cannot transfer ownership of a Chase checking account to a trust simply by writing a letter saying you intend to do so. Without the actual transfer of legal title to a trustee, the trust remains an empty vessel—holding no property and wielding no power.
The Proper Role of a Letter of Wishes
Does this mean we advise against writing a letter to your family or your trustee? Not at all. Written letters play a vital role in generational wealth transfer, but they must be used for their proper purpose. They are companions to an estate plan, not replacements for one.
When we draft a trust, we often give the trustee broad discretionary power to make distributions to beneficiaries for their health, education, maintenance, and support. A trustee might need to decide whether to fund a beneficiary’s startup business or pay for a wedding. This is where a Letter of Wishes becomes invaluable.
A Letter of Wishes is a separate, informal document addressed to the trustee. It explains the grantor’s philosophy on money, work ethic, and family values. It provides the trustee with a moral compass for exercising their discretion. However, the letter explicitly states that it is not legally binding. It guides the trustee’s judgment without creating rigid legal constraints or opening the door to beneficiary lawsuits.
Stewardship.
That is what a well-crafted estate plan provides. It protects your assets and cares for your family without the burden of ambiguity. Relying on a handwritten letter to manage your legacy is a gamble that places the financial and emotional costs squarely on the shoulders of the people you leave behind.
If you have written informal letters or notes detailing how you want your assets distributed, those documents need to be formalized before they become a liability. Schedule a 45-minute document review session with our office to translate your informal wishes into a legally binding estate plan that Surrogate’s Court will actually honor.
