A client came to my Manhattan office with a common and thoughtful question. She had spent decades building a significant collection of Russian art and wanted to leave specific pieces to her dozen nieces and nephews. “I don’t want to list all thirty paintings in my will,” she said. “What if I sell one or buy another? Must I call you to draft a new codicil every time?”
This is a practical concern. Many people assume they can write a will that simply points to an external, less formal list—one they can update as their property changes. In New York, this approach is fraught with legal risk and is generally not enforceable.
New York law places immense importance on the formality of a will. The document must be signed, witnessed, and complete within its own “four corners.” The goal is to prevent fraud and ensure that the testator’s final wishes are clear and unambiguous. Allowing a will to incorporate other, less formal documents by reference opens the door to uncertainty and litigation. Who is to say the list was not swapped out after the will was signed? Who verifies its authenticity?
For these reasons, our courts have long held a skeptical view of what is known as “incorporation by reference.” While many other states permit a will to reference a separate list for distributing tangible personal property, New York does not. A simple, unsigned list of assets attached to your will generally has no legal effect.
The General Rule: No Incorporation by Reference
When a will is submitted to the Surrogate’s Court for probate, the judge must be satisfied that the document presented is the exact one the testator intended. The strict execution requirements—signing at the end in front of two witnesses who also sign—are designed to create a single, authoritative instrument.
The legal doctrine is clear: a will cannot incorporate an external document by reference unless that document was also executed with the same formalities as a will. If you write, “I direct my executor to distribute the property on the attached list according to its terms,” and that list is just a simple piece of paper you signed yourself, the court will likely ignore it. The disposition would fail, and the property would instead pass to the residuary beneficiary of your estate—or, if there is no residuary clause, through the laws of intestacy.
This is a harsh outcome, but it underscores the state’s policy of demanding absolute clarity and formality in a person’s final testamentary act. The court cannot be left to guess whether a separate document truly reflects the final wishes of the deceased.
The Limited Exception: Pour-Over Wills and Trusts
There is one significant, statutory exception to this rule that we use frequently in our practice: the “pour-over” will. This is a will that, instead of making direct bequests, directs some or all of the estate’s assets into a trust that was created during the testator’s lifetime.
New York Estates, Powers and Trusts Law (EPTL) § 3-3.7 specifically authorizes this. The law allows a will to bequeath property to the trustee of a trust, provided the trust is in writing and was executed before or at the same time as the will. The trust itself does not need to be witnessed like a will.
This is the mechanism that solves my client’s problem. Rather than trying to incorporate a simple list into her will, we can create a revocable living trust. The trust agreement can contain detailed instructions for distributing her art collection. Her will then becomes a simple document that says, in effect, “I give my personal property to the trustee of my Revocable Trust, to be distributed according to its terms.”
She can then amend the trust’s distribution schedule as often as she likes without having to formally re-execute her will each time. The trust, not the will, becomes the primary vehicle for her legacy planning. It provides the flexibility she needs while remaining fully enforceable under New York law.
A Note on Personal Memoranda
What about a less formal approach? Many people write a separate letter to their executor expressing their wishes for the distribution of sentimental items—jewelry, furniture, photographs. This is often called a precatory memorandum.
This type of document is not legally binding. The word “precatory” itself suggests a wish or a recommendation, not a command. You are relying on the moral obligation of your executor and the goodwill of your beneficiaries to honor your requests.
In a family where relationships are strong, this can work perfectly well. The executor treats the letter as a clear roadmap and distributes the items accordingly. But if there is any dispute among the beneficiaries, the memorandum has no legal weight. An heir who is legally entitled to the property under the will cannot be forced by a court to give it up based on an informal, non-binding letter.
Stewardship. When we plan our estates, we are acting as stewards for the next generation. That duty requires us to be intentional and deliberate. Relying on legally unenforceable wishes for items of significant sentimental or financial value is a risk I rarely advise my clients to take.
If your estate includes unique assets or you desire a flexible way to direct your personal property, the answer is not a simple list stapled to your will. The most prudent path often involves a properly drafted trust. A preliminary step is to create a detailed inventory of the items in question. With that document in hand, schedule a meeting to review it and discuss the structure that will best protect your legacy.
