Three Requirements for Incorporation by Reference
Sometimes a testator wants to reference an outside document in their will. This could be a letter listing personal property distributions, a trust agreement, or a memorandum of wishes. Arizona law allows this through incorporation by reference, but only if three conditions are met.
A testator may incorporate a written document into the testator's will by reference if the following requirements are met: 1. The document exists at the time the testator executes the will. 2. The will's language manifests the testator's intent to incorporate this document. 3. The will's language describes the document with enough specificity to allow its identification.
A.R.S. § 14-2510First, the document must already exist when the will is signed. You cannot incorporate a document you plan to write later. Second, the will itself must make clear that the testator intends the outside document to be part of the will. Vague references are not enough. Third, the will must describe the document with enough detail that someone reading it can identify exactly which document is being referenced.
Where This Comes Up in Practice
The most common use of incorporation by reference is a personal property memorandum. This is a separate written list that says who should receive particular items of tangible personal property. Think jewelry, artwork, or family heirlooms. The will references this list. As long as the list existed when the will was signed, it becomes part of the estate plan.
This approach has a practical benefit: the will itself does not need to be re-executed every time you want to change who gets a specific item. However, if you want to update the memorandum after the will is signed, that updated version must either be incorporated through a new will or codicil. It can also be addressed through a separate statutory provision for tangible personal property lists under A.R.S. 14-2513.
Incorporation by reference also applies when a will references an existing trust agreement. For pour-over wills that direct assets into a living trust, this framework ensures the trust document is properly connected to the will for probate purposes. The referenced trust serves as the governing document for how those assets are managed and distributed.