How to dispose of Tangible Personal Property in your Will www.zeekbeek.com
Introduction. Your
clothing, jewelry, art work, photo albums, china, car, boat, furniture,
and other physical possessions – these items are called your tangible
personal property. Whether or not these are the most
economically valuable part of your estate, when it comes to emotional
value they are priceless. So how do you dispose of your tangible personal property under your Will?
In General. Sometimes you want to leave everything you own to one person, or to a group of people. For
example, if you are leaving everything you own to your spouse, or
everything to your children, or everything to your parents, then that
includes your tangible personal property, so you probably don’t need a
separate provision in your Will about your tangible personal property.
Making a Specific Bequest of Tangible Personal Property. But what if you want to single out certain items and leave them to certain people? In that case, you do use a separate provision in your Will to make those bequests. Let’s consider the following example, from the Will of a “Mr. Sherman Holmes”:
If my daughter Joanne Holmes survives me, I give and bequeath to her my gold class ring, if owned by me at the time of my death. If
my brother Myron Holmes survives me, I give and bequeath to him all
books written in the Latin language owned by me at the time of my death.
Let’s analyze this provision:
- We have picked out certain items and given them to specific people, Joanne and Myron.
- But only if that property is actually still owned by the Sherman at death.Why? Because Sherman might give away or sell that property between the time that he makes the Will and the time that he dies, and we don’t want that to lead to any type of confusion or even dispute between the person, say Myron, who was set to inherit the property under the Will, and the person Sherman gave or sold it to during Sherman’s lifetime.A Will is not effective until death, and a person retains every right to give away or sell their property during life regardless of what the Will says.
- Also Joanne and Myron only get the property if they survive Sherman.Why? Because probably that’s what Sherman wanted.In other words, if Joanne has died, Sherman probably doesn’t want Joanne’s husband, or whoever else inherited Joanne’s estate, to inherit the ring. By way of comparison, consider this provision from the Will ofGrateful Dead musician Jerry Garcia:
GUITARS I give all my guitars made by DOUGLAS ERWIN, to DOUGLAS ERWIN, or to his estate if he predeceases me.
Here you can see Mr. Garcia did want Mr. Erwin’s heirs to receive the guitars if Mr. Erwin had died before Mr. Garcia, and so the bequest of the guitars does not depend on Mr. Erwin surviving, unlike in our example with Joanne and Myron.
You may be wondering, what happens to the rest of the tangible personal property that is not given to Joanne or Myron?
In this example it falls into the so-called “residue” or rest of the
estate, and is disposed of along with all of the other estate property
to spouse, children, siblings and/or whoever else is inheriting the
general estate under the Will.
Potential Problems with Tangible Personal Property. If
family relationships are good it may be quite practical for two people
to informally share an item – for example, Mom can leave her engagement
ring to both her daughters and they can take turns wearing it. Alternately,
by talking to family members ahead of time it is often possible for
everyone to agree about the sentimental items each would most like to
receive. When family relationships are strained specifying
which sentimental item each child will receive may prevent dispute, and
if one item is worth much more than the others, a compensating cash
bequest can be made. But sometimes parents fear alienating one child by leaving certain items to the other(s). In such a case formal procedures may be required. One
option is to direct the Executor to sell the tangibles and divide the
proceeds, but allow family members to “purchase” (basically by
exchanging the cash or other assets they would have received from the
estate for the desired item). Another option is to use a
rotating selection process where children, for example, take turns
choosing the items they wish in a series of rounds, with a different
person getting to pick first in each round (who chooses first in the
first round can be decided by drawing straws). Any unselected items are sold and the proceeds divided equally without regard to the valuation of the objects selected.
Personal Property Memorandum. Some
states – but not New York -- allow use a of personal property
memorandum, which is separate from your Will but is mentioned in your
Will. In that case basically your Will would say that if
you leave a separate signed writing disposing of some or all of your
tangible personal property, your Executor should follow it. The
advantage is that you can simply make a list (as short or as detailed
as you wish) of your personal property and who you wish to receive it,
instead of having to spell all of that out in your Will. You
must sign the list, you should date it (to avoid confusion about which
was the “final” list), you should label it “personal property
memorandum,” you should keep it somewhere safe but accessible
(preferably with your Will), and you should not contradict anything in
your Will. For example if you leave your piano to your son
in your Will, you should not leave it to your daughter in your personal
property memorandum. As noted, some states do not allow personal property memorandums so you need to check that before using one.
Disclaimer – Blog Not Legal Advice
This blog is not legal advice and no attorney-client relationship is formed. The information and materials on this blog are provided for general informational purposes only and are not intended to be legal advice. The law changes frequently and varies from jurisdiction to jurisdiction. Being general in nature the information and materials provided may not apply to any specific circumstances. Nothing on this blog is intended to substitute for the advice of an attorney. If you require legal advice, please consult with an attorney licensed to practice in your jurisdiction.
