Changing the Beneficiaries of a Will Without Changing the Will

Robert H.  Groman

Robert H. Groman
Partner, Corporate and M&A

Question: Is there a way to effectuate a change in the ultimate recipients of a person’s probate[1] assets, i.e., assets that pass to beneficiaries under a will, by reference to a document other than the person’s will?

Answer: Yes. Under New York law, incorporation by reference does not prevail because it is “an unattested paper.” The purpose of this statute is to eliminate the possibility of fraud or mistake. While New York State prohibits “incorporation by reference,” i.e., changing the terms of a will through a document that is not a will[2], New York law does permit a trust to effectuate a change in the ultimate recipients of probate assets. The type of will that takes advantage of this law is called a “pour-over will.” That is, the will states that the probate assets are to be paid to a trust which is not part of the will.

The trust to which the assets will be “poured over” to must be expressly “identified” in the will and the trust must be executed prior to or contemporaneously with the last will and testament.

In summary, the general rule in New York is that a document which is of a testamentary nature cannot be taken as a part of a will even though referred to in the will. However, New York permits a testator to make a pour-over bequest in a will to a trust provided that such trust is executed prior to or contemporaneously with the execution of the will, and such trust is identified in the will.

[1] A probate asset is an asset in the name of a person with no designated beneficiary. For example, a bank account that is not joint or “in trust for” someone, a life insurance policy with no beneficiary designation or a home with only one owner.

[2] A person can amend a will by creating a codicil, an amendment to a will. A codicil is not an extraneous document as it becomes part of the will.

The information contained in this post does not, and is not intended to, constitute legal advice. The content is general educational purposes only.