Technical article

A List of Wishes for Your Things

A letter of wishes is not binding.

By Neil Solomon · 4 min read

Picture a widow in Texas with three grown children. She has a few hundred small things: a ring, a clock, some coins, a shelf of china. She would like each child to have the pieces they love, and she would like to write it down. Does a handwritten list count?

The answer depends on where she lives, and on how the list is tied to her will.

In the United Kingdom

A letter of wishes is not binding. A Law Society community article describes the usual set-up. Chattels not otherwise given can pass to the executor outright, with a request, not a binding trust, to follow the wishes. The wishes may sit in a memorandum, in papers, in marks on the items, or be spoken. The executor normally follows the latest one found. If no wishes turn up, the gift does not fail.

There is a tax point as well. Section 143 of the Inheritance Tax Act 1984 says that if a person passes property on within two years of death, in line with a wish expressed in the will, it is treated as given by the will. The same article says later distributions are otherwise the executor's own gifts.

In the United States

Many states let a will refer to a separate signed writing for tangible personal property. Idaho Code 15-2-513 and Utah Code 75-2-513 have near identical wording. The writing is signed, and it describes the items and the people with reasonable certainty. It may be made before or after the will, and it may be changed. Idaho leaves out money, evidences of debt, documents of title, securities and business property.

Montana State University Extension adds that such a list can name items and recipients but cannot hand out cash, securities or real estate. It can be changed without a new will if each change is dated and signed.

Nolo says the memorandum needs no witnesses or notary where allowed, and the latest one controls. It also says that in a state that does not recognize the device, the memo has no legal effect, and that it must be referred to in a valid will to bind.

How many states allow it? One commercial survey counts 33 jurisdictions with a statutory device and 18 without. It lists New York and Texas among those without. That is a tier U source, so each state is worth checking on its own legislature's page.

The objection

You might say that the children get along, so a list is a fuss. Many families do. Montana State's extension service points out that things without a title cause more conflict than titled assets, and that they are mostly sentimental, not financial, in value.

Families also disagree on what fair means. It may be an equal number of items, an equal dollar value, or an equal emotional value. The extension service adds that some people feel good about a lottery when everyone's view has been heard first. The University of Minnesota's program for families starts the same way: decide what is fair, list the items, then talk through disagreements.

Who this touches

The children, first. The executor, who is spared guessing. A partner, who may be the one holding the box when the question comes. And the papers, since a list that is not tied to the will may carry love but not force.