The old saying is right: you can’t take it with you. Everything you own — the family home, the brokerage accounts, the small things you’ve accumulated over a lifetime — will pass to someone else when you’re gone. Most estate planning conversations focus on the big assets. The smaller ones — the watch, the painting, the wedding china, the books — can fracture families more often than the big ones do.
Below: how to handle specific bequests, why a private memorandum is often the right tool, what the residuary estate is and why it matters, and what a no-contest clause actually does.
Specific bequests, in the will itself.
A specific bequest is exactly what it sounds like: a particular item to a particular person. “I leave my grandfather’s pocket watch to my son David.” The advantage of putting bequests in the will itself is enforceability — the executor must follow the will. The disadvantage is rigidity. If David predeceases you, what happens? If the watch was sold or lost? If you change your mind in five years, you have to revise the will.
For a small number of bequests with strong sentimental or financial weight, the will is the right place. For a long inventory of personal items, it isn’t.
The private property memorandum.
For most personal property, the right tool is a private memorandum — sometimes called a personal property memorandum or tangible personal property list. The will references the memorandum and incorporates it. The memorandum lists items and recipients. The advantage: you can update the memorandum without revising the will. Add a new item, change a beneficiary, or remove something you’ve given away during life — just sign and date a new version.
Memoranda are recognized in many states (subject to specific statutory requirements about handwriting, signatures, dates, and what kinds of property they can cover). New York has more limited memorandum recognition than some states — usually a memorandum incorporated by reference into the will works, but the formalities matter. We help clients structure memoranda that fit New York law.
The memorandum is also a humane place to write a sentence or two of context. “The watch belonged to my grandfather, who gave it to me when I started law school.” That kind of context is sometimes the most valuable part of an inheritance.
The residuary estate.
After the specific bequests are paid out, what’s left is the residuary estate. This is where the bulk of most estates lives, and where the residuary clause of the will does its most important work.
The residuary clause typically directs that the remainder pour into a trust, or be divided among named beneficiaries, or in proportions specified in the will. A common pattern: “all the rest, residue, and remainder of my estate to my spouse, or if my spouse does not survive me, to my children in equal shares per stirpes.”
Two things to watch:
- Specific bequests come out of the residuary. If you make $100,000 of specific bequests and your residuary beneficiary is your spouse, you have effectively reduced your spouse’s share by $100,000. Sometimes that’s the intention. Sometimes it’s a surprise.
- The residuary catches everything you didn’t mention. That includes assets acquired after the will was signed, items the memorandum didn’t cover, and assets that came back to you (a gift you made that was returned, an asset that was supposed to pass elsewhere but didn’t).
In terrorem (no-contest) clauses.
An in terrorem clause — from the Latin for “in fear” — provides that a beneficiary who challenges the will forfeits whatever they would have received under it. The point is to discourage litigation by making the cost of losing larger than the upside of winning.
The mechanics matter. If you give a child nothing, an in terrorem clause is meaningless to them — they have nothing to forfeit. The classic structure leaves the disfavored child something meaningful enough that they would not want to risk it — often a five- or six-figure share — while concentrating the bulk of the estate elsewhere. Whether the clause “works” depends on the size of the bequest and the temperament of the beneficiary.
State law also matters. Some states (Florida, for example) substantially limit the enforceability of in terrorem clauses. New York enforces them, with limited exceptions for good-faith challenges supported by probable cause. For families where contest is a realistic risk, an in terrorem clause is worth considering — not as a guarantee, but as a meaningful deterrent.
Charitable bequests.
The will is also where most planned charitable giving lives. The simplest version is a fixed-dollar bequest (“$25,000 to the American Red Cross, EIN 53-0196605”). More flexible are percentage bequests (“5% of my residuary estate to…”). Most flexible are charitable remainder structures, where the asset produces income for a beneficiary during life with the remainder going to charity. We work with clients on the right structure for their charitable goals and tax picture.
Two practical points: get the legal name and EIN right (charities reorganize, merge, and rename), and consider a fallback if the named charity ceases to exist (typically directing the bequest to a similar charity selected by your executor or trustee).
Quick FAQ.
Can I just write a list and tape it to my will? No — not without specific formalities. New York recognizes memoranda incorporated by reference into a will, but the will must reference the memorandum, and the memorandum must be in existence at the time the will is signed (or, depending on the structure, properly executed in its own right). We help clients set this up.
What about my jewelry and watches? The classic “memorandum” assets. Designate them on a memorandum, update the memorandum as your collection changes.
Can I leave money to a pet? Not directly — pets cannot own property. But you can establish a pet trust funded for the care of an animal, with a named caretaker and trustee. New York recognizes pet trusts under EPTL § 7-8.1.
How do I prevent my estate from being contested? Three tools: (1) a clear, current, and properly-executed plan; (2) communication with family during your life; (3) where appropriate, an in terrorem clause. Talk to us if contest is a realistic concern.