Disposing of Tangible Personal Property at Death
Many individuals have very specific ideas in mind as to whom they wish to receive their cherished personal belongings such as jewelry, antiques, clothing etc., at their death. These are often items with strong sentimental value that an individual wishes to go to his/her children or certain family members. While this is a very important part of estate planning, it is one that is often overlooked by clients when doing their estate planning, and one that should be put in writing.
What exactly is tangible personal property? Tangible personal property is any type of property that can generally be touched or moved, such as jewelry, clothing, artwork, etc. Individuals typically have in mind whom they wish to leave certain valuable or sentimental items, but unfortunately, do not put these intentions in writing. Failure to provide for the disposition of tangible personal property in a written document such as a Will or Memorandum can lead to family feuds and hurt feelings by those who believed they would automatically receive a certain item because the decedent had told him/her that they would. For instance, a mother tells her oldest daughter that she wishes the daughter to have her diamond engagement ring when she dies. Later, when the mother passes away, the youngest daughter claims that mother would want her to have the ring, and a fight ensues. Merely telling an individual that you want him/her to receive a specific item at your death is not sufficient. Oral promises to leave tangible personal property to certain individuals are not enforceable. It is important to put your wishes in writing.
An individual may provide for the disposition of tangible personal property in a Will or in a Memorandum. However, it is often advisable to designate tangible personal property via a Memorandum instead of in a Will. The reason for this is that an individual may change his/her mind over the course of a lifetime as to who they want to receive specific items, or the items may no longer be in existence, therefore requiring changes to the Will by executing a Codicil or a new Will. By providing for the disposition of tangible personal property in a Memorandum, an individual may later make changes by destroying the old Memorandum and executing a new one, which is a simpler, and less expensive process than executing a new Will or Codicil. However, there are certain requirements that must be followed for a Memorandum to be legally enforceable and not just precatory language indicative of your intent:
- Your Will should permit you to leave a memorandum and the memorandum should refer to your Will.
- The memorandum should not include items already specifically mentioned in your Will.
- The memorandum should not be used to give money, notes, real estate, deeds, securities, other documents of title, or property used in a trade or business.
- You should date and sign the memorandum contemporaneously with your Will. If you list items on more than one page, date and sign each page. Your signature need not be witnessed.
- You should clearly describe each item so that it can be easily identified and not be confused with another similar item.
- Each recipient should be identified by his or her proper name and relationship to you, if any. If possible, the address of the recipient should be added if he or she is not closely related to you, so that proper identification is ensured.
- If you execute a new Will, you should sign a new memorandum unless the old memorandum is specifically identified by date and incorporated in your new Will.
- You should keep the memorandum in a place where it is likely to be found, such as a desk, file, or safe deposit box, but preferably wherever your Will is kept. You should explain the location and purpose of the memorandum to your family or others likely to survive you.
If you wish to make changes to an existing Memorandum and you are not executing a new Will, you should destroy the entire Memorandum and sign and date a new one.
By executing a Memorandum disposing of tangible personal property, an individual can help to avoid future squabbles and hurt feelings by family members and friends when disposing of a loved one’s personal belongings. For more information on creating a Will or Memorandum Disposing of Tangible Personal Property, please contact McAndrews Law Offices at 610-648-9300.
By Jennifer Simons, Esq., McAndrews Law Offices, P.C.