Leave Your Jewelry in a List, Not a Codicil
Say you want to leave your grandmother’s brooch to one niece, a watch to a nephew, and a set of golf clubs to a friend — but you don’t want to pay an attorney to rewrite your will (or a codicil) every time you change your mind about who gets what. California has a built-in solution: the § 6132 personal property memorandum.
This tool is useful for real families managing everyday estate planning, and it’s a favorite California Bar Exam topic because it deliberately breaks one of the rules of incorporation by reference — on purpose, by statute.
What Is a § 6132 Memorandum?
A § 6132 memorandum is a separate writing, referenced in a will, that disposes of limited tangible personal property — the kind of physical items (jewelry, art, furniture, vehicles, personal effects) that don’t need a deed or title transfer. Unlike a document incorporated by reference, a § 6132 memorandum can be created before or after the will is signed, and it can be updated repeatedly, without the formality or expense of a codicil. It applies only to decedents dying on or after January 1, 2007.
The Four Conditions
Probate Code § 6132 sets out four requirements:
- The will must reference the writing. Vague language (“all my personal property”) is riskier than explicit language (“per a memorandum I prepare”).
- The writing must be dated, and either signed or handwritten by the testator. If neither is true, extrinsic evidence may still establish the testator’s intent to include it — but this is a weaker position.
- The writing can be prepared before or after the will. This is the statute’s key advantage over ordinary incorporation by reference.
- It may dispose only of limited tangible personal property, subject to dollar caps.
The Dollar Caps
This is where bar exam fact patterns love to trip people up.
| Cap | Amount | What happens if exceeded |
|---|---|---|
| Per item | $5,000, valued at death | The item is excluded from the memorandum and passes through the residuary clause or intestate succession |
| Aggregate | $25,000, valued at death | Only counts items that are within the per-item cap |
The key trap: an excluded over-cap item does NOT count toward the $25,000 aggregate. So a memorandum with one very expensive item and several modest ones can still be mostly valid — only the expensive item drops out.
A Worked Example
Testator Grace executes a will in 2023 stating: “I leave my tangible personal property according to a memorandum I may prepare and update from time to time.” In 2024, Grace writes, dates, and signs a memorandum:
- A ring worth $4,000 to her granddaughter, Amy.
- A vase worth $2,500 to her friend, Beatriz.
- A sculpture worth $9,000 to her son, Carlos.
- A collection of books worth $1,000 to her book club.
Grace dies in 2025.
Analysis: The ring, vase, and books total $7,500 — well under the $25,000 aggregate cap, and each item is under the $5,000 per-item cap. Those gifts are valid under § 6132. The sculpture, worth $9,000, exceeds the $5,000 per-item cap and is excluded from the memorandum entirely; it passes instead through Grace’s residuary clause (or by intestacy if there is none). Critically, the excluded $9,000 sculpture does not count against the $25,000 aggregate — so the other three gifts remain fully valid regardless.
Why the Timing Rule Matters
Ordinary incorporation by reference requires the referenced document to already exist, in essentially final form, at the time the will is executed. That rule makes sense for large or complex dispositions, but it’s a poor fit for a simple list of who gets Grandma’s china — people’s preferences about small personal items change constantly.
Section 6132 solves this by letting the testator draft, revise, or replace the memorandum any time after the will is signed. If two memoranda conflict over the same item, the more recent memorandum controls.
Where § 6132 Fits With Other Will Doctrines
If an item in the memorandum exceeds the caps, it doesn’t just vanish — it passes through whatever mechanism the will provides for property not otherwise disposed of, typically the residuary clause, or by intestate succession if there’s no residuary clause. That’s why estate planners routinely include a residuary clause even in wills that rely heavily on § 6132 memoranda: it catches anything the memorandum can’t validly cover.
A § 6132 memorandum is also simpler than a codicil. A codicil must satisfy the same execution formalities as a will (signature plus two witnesses, or the handwriting/signature requirements for a holographic codicil). A § 6132 memorandum only needs to be dated and either signed or handwritten — no witnesses required.
FAQ
Can I write a § 6132 memorandum after I’ve already signed my will?
Yes — this is the entire point of the statute. Unlike ordinary incorporation by reference, a § 6132 memorandum can be created or revised at any time after the will is executed, as long as the will references it.
What happens if my memorandum leaves a $9,000 painting to someone?
That single gift exceeds the $5,000 per-item cap and is excluded from the memorandum. It passes instead under your will’s residuary clause, or by intestate succession if you don’t have one.
Do I need witnesses to sign my § 6132 memorandum?
No. The memorandum only needs to be dated and either signed or handwritten by you. It doesn’t require witnesses the way a will or codicil does.
Key Takeaways
- A § 6132 memorandum is a separate writing, referenced in the will, disposing of limited tangible personal property — valid for deaths on or after January 1, 2007.
- It can be created before or after the will, unlike documents incorporated by reference.
- Dollar caps apply: $5,000 per item, $25,000 in aggregate, valued at the testator’s death.
- Items exceeding $5,000 are excluded and do not count against the $25,000 aggregate cap.
- If multiple memoranda conflict, the most recent one controls.
This article is educational and is not legal advice. Consult a licensed California attorney about your situation.
Related guides
- will integration doctrine in California
- pour-over wills in California
- conditional wills in California
- California’s harmless error rule for wills