Fairfax, VA Probate Blog

Monday, February 23, 2015

Probating a Will With A Separate or Legal List

A Last Will & Testament may reference a separate list that expressly bequests tangible personal property (not real property and not intangible personal property). Such a list is often called a Legal List. Its critical that an Executor identify whether the decedent died with or without a Legal List to protect the Executor from liability during the probate process.  

A Legal List can be a great tool to dispose of said personal property because, in order to expressly bequest said items, the decedent would have to hire an attorney each time a change is to be made. That can be costly. Also, when new assets are acquired, in order to bequest said items, an attorney would need to have been retained to change the Will.

However, an Executor that fails to make distributions in accordance with the decedent's legal list may be liable for failing to do so if the Executor had knowledge that the legal list existed and provided for a different distribution. On the other hand, if the Executor makes a distribution in accordance with a legal list that is not valid then the Executor may be liable for the distribution. 

How a Legal List Works?

If a will refers to a written statement or list to dispose of items of tangible personal property not otherwise specifically bequeathed, the statement or list shall be given effect to the extent that it describes items of tangible personal property and their intended recipients with reasonable certainty and is signed by the testator although it does not satisfy the requirements for a will. Bequests of a general or residuary nature, whether referring only to personal property or to the entire estate, are not specific bequests for the purpose of this section.

The written statement or list may be (i) referred to as one that is in existence at the time of the testator's death, (ii) prepared before or after the execution of the will, (iii) altered by the testator at any time, and (iv) a writing that has no significance apart from its effect on the dispositions made by the will. When distribution is made pursuant to such a written statement or list, a copy thereof shall be furnished to the commissioner of accounts along with the legatee's receipt.

A personal representative shall not be liable for any distribution of tangible personal property to the apparent legatee under the testator's will made without actual knowledge of the existence of a written statement or list, nor shall he have any duty to recover property so distributed. However, a person named to receive certain tangible personal property in a written statement or list that is effective under this section may recover that property, or its value if the property cannot be recovered, from an apparent legatee to whom it has been distributed in an action brought for that purpose within one year after the probate of the testator's will.

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