Clients frequently want to leave grandma's ring to one grandchild and the fishing boat to another without rewriting the will every time their preferences change. A tangible personal property memorandum feels like the obvious solution, but New York does not give these memos the same binding force as some other states. Understanding that limitation is essential before relying on one.
Why New York Treats These Memos Differently
Many states have adopted statutes that let a testator reference a separate, unwitnessed memo to dispose of tangible personal property, and that memo becomes legally enforceable if it meets certain requirements. New York has no such statute. An informal, unwitnessed list is treated as precatory — a wish, not a binding direction — and New York does not allow an unwitnessed memo to be incorporated by reference into a will. A binding gift must therefore appear in the will itself or in a codicil executed with the formalities of EPTL 3-2.1.
How to Use a Memo Safely
The safest approach is to have the will itself grant the executor discretion to honor a separate written list of tangible personal property, framed as guidance rather than command, while keeping any binding, high-value, or contested items named directly in the will or in a validly executed codicil. This keeps flexibility for low-stakes items like furniture or books while ensuring anything likely to cause conflict, such as jewelry with sentimental weight, gets the full protection of testamentary formalities.
- Keep the memo updated and dated, even though it is not self-executing
- Store the memo with the original will so the executor can locate both together
- Discuss high-value or contested items with a lawyer rather than relying on an informal note
Balancing Convenience and Enforceability
A memo can still be a valuable planning tool for reducing family friction, even without full legal force, because most executors and beneficiaries will honor a clearly written, dated list rather than fight over silverware. But testators should not mistake convenience for enforceability. When our office prepares wills, we discuss which items belong in the formal document and which can safely live in a supplemental memo, so clients understand exactly what protection each approach provides.
If you are trying to divide personal belongings among family members without creating future disputes, our attorneys can help you structure both the will and any supporting memo correctly. Call Schwartsman Law Group at +1 212 518 3868 or schedule a free consultation to talk through your options.
