Incorporating Referenced Documents in Wills
A testator, or creator of a will or trust, may be faced with some difficulty when trying to connect the various parts of their estate. Whether owning a large estate with multiple types of property or a modest, well-saved sum, the agreements and documents that make up a person’s property do not always fit within a single testament. Instead, some of these supplementary documents need to be referenced within the will in order to more accurately divide up an estate. The process of achieving such a task is known as incorporation by reference.
Incorporation by reference is a common law practice that enjoys wide usage across most American jurisdictions. However, it suffers from some of the same legal reservations that testaments themselves suffer from. This means that the law has established some standards that must be met before the testament can be tethered to another document.
As with the testament, the intention of the testator must be proven and preserved. A referenced document or agreement must be clearly linked to the testament according to the intention of the testator. This means that a document will not be considered a part of the will if it referenced by accident, or without sufficient proof that the testator meant to join the two.
In addition to intention, the proof itself is an important part of the process. A testament will not be joined to another document if the testament does not very specifically name the accompanying document. In addition to this, the testator’s signature must be present on the joined document to prove its legitimacy.
Finally, a referenced document cannot be drafted after the testament is created. Although this is to protect the integrity of the testament’s more contentious properties, changing or creating the referenced document after the testament is permitted with personal properties. Real estate and funds are considered more problematic than dividing up chairs, jewelry, and other personal possessions, generally speaking.
To learn more about referencing documents in a testament, contact an estate planning attorney.