Question: My deceased husband left a will that included the following language:
To my spouse: any household furnishings, furniture, and personal automobiles. My personal effects shall be divided substantially 1/3 equal shares between my wife, my son, and my daughter. Provided that any such items as I specify in a written, dated statement or a list signed by me or in my handwriting shall be distributed to such person(s) as specified therein.
We did find a list with instructions on who should receive certain property. So are the items on the list all that has to be divided, or do we still have to divide all the other personal effects? The list indicates that our ranch should go to me as long as I live in it, and then go to his children (the exact wording is: “The ranch to my spouse as long as she lives there, and then 25% to my son, 25% to my daughter, and 10% to each grandchild.”). But can I purchase the ranch? I do not plan on leaving from here. This is my home. And he left me the money to pay it off. I want to stay in the ranch as long as I live, and then protect it from being sold to anyone other than family members after I’m gone.
Thank you so much,
Answer: The first question that you asked (and the one that I can answer here) is straightforward. As you continued to type, however, it became apparent that you have a more complex situation on your hands than I think you realize.
With regard to the the list that your husband referred to in his will, that is called a personal property memorandum. Most people know that if you want to direct where your stuff goes after you die, you can do so with a will. And while you can (and should!) change your will as your circumstances change, you probably don’t want to do it more often than absolutely necessary. Every time you update your will, you increase the chances of confusion or mistakes about which one was the most recent version.
The problem of course is that the stuff that you own is going to change a lot more often than it will be convenient to change your will. Probably every couple of weeks, at least. Sometimes daily. And it’s your personal property that is probably going to change the most often — i.e., the stuff inside your house. In all likelihood, you’re constantly adding new stuff and getting rid of old stuff. So how do you draft a will that keeps up with this constant change?
A great way to do it is with a personal property memorandum. The way it works is that you say in your will that you might leave a memorandum, listing items that you want to be given to specific people, and that if that list is found within some certain period of time after your death, the instructions in it should be followed. Then, rather than having to reexecute your will every time you acquire something new or get rid of something old, you just change the memorandum. No need to update the will and go through the hassle of all the signing formalities that a will requires in order to be valid.
As you may have realized, there are some potential problems with this option. The reason that we make it somewhat difficult to execute a will is because we want to discourage fraud. And so we require that you sign it in front of two witnesses. And that it be notarized. Neither of these requirements apply to the personal property memorandum. It only needs to be signed by the person leaving the instructions. This makes a lot easier to create a fake memorandum than it is to create a fake will. We are accepting the possibility of some fraud here in exchange for convenience.
To limit the potential damage that could be done by someone willing to fabricate a personal property memorandum, we only allow it to be used for a very specific purpose. As its name indicates, that purpose is to distribute your personal property. You cannot use a personal property memorandum to distribute money, real estate, stocks, or other similar assets. Instructions on who can receive those items can only be left in a will or a trust agreement. This limitation on which assets can be distributed through a separate memorandum caps the amount of damage that can be done by mistake or fraud.
So the answer to what I think was your primary question is that, regardless of what your husband may have said about who should receive the ranch in his personal property memorandum, his will is going to be the document that decides who gets it, and what kind of ownership they have.
You should be aware that there are a couple of other rules that may help you if you get into a dispute with your husband’s other heirs about this stuff. First of all, how was the ranch titled? If it was titled to your husband alone, then yes, his will determines what happens to it now. But if it was jointly titled to both of you, then you are likely now the sole owner, regardless of what the will may say. Also, how much of his estate did your husband leave to you? Depending on how long you were married, you may have the right to elect to receive a larger portion of the estate than he left (this is called the “spousal elective share” if you’d like to Google additional information about that). And then to answer your last question, yes, if it turns out that someone other than you owns the ranch, of course you can offer to purchase it. But unless there’s some sort of agreement out there somewhere giving you a purchase option, all you can do is make an offer. You can’t force the owner to sell.
I would not try to figure this out without the help of a lawyer. The tone of your question suggests that you think getting into a contested situation with your stepchildren about the ownership of your home is a possibility. If you’re right about that, the stakes are too high to risk messing it up.
I wish you the best of luck, and my condolences on your loss.