Property Memorandums: How Do I leave my Personal Items Fairly?

A2277897In most meetings with clients, I always find myself discussing how to distribute an individual’s personal property upon their death.  For a large number of clients, distributing personal items among children or family members are the hardest decisions to make in their estate plan.  Personal belongings, unlike financial assets, cannot truly be divided equally.  Personal property can include books, computers, cameras, stereos, pictures, artwork, jewelry, art objects, hobby equipment and collections, clothing, household goods, furniture and furnishings, automobiles, boats, trailers and vehicles of all sorts.

Tangible personal property may have little monetary value, but certain items may have great emotional significance.  These sentimental items cause the most difficulty for the Personal Representative (formerly known as the Executor) in their distribution of estate assets and can cause the most resentment among beneficiaries.  In some estates, this resentment can boil over into litigation between the beneficiaries and the estate.  The administration of the estate can turn into a venue for old family insecurities, sibling rivalries, and grievances.  Most families are able to work out the distribution of personal belongings, which have included methods such as:

  • Draw lots and take turns picking items.
  • Use colored stickers for each person to indicate what that person wants.  If there is one sticker on an item, it will go to that person. Where there is more than one sticker, then the family may revert to taking turns on the contested items.
  • Obtain appraisals.  The distribution of items is even more difficult if some items have significantly more value than others. If drawing lots and taking turns is used, one family member may walk off with the most valuable item.  Families may need to balance these concerns by grouping similar items with similar values in order to make the distributions as equal as possible.  Some individuals may receive a single item while others choose several that together are worth as much as the most expensive possession.  In other cases, the individual or individuals getting the most valuable items may have to pay the other family members for the value or the family members may decide that the only fair way to go is to sell the most valuable possessions and share the proceeds equally.
  • Bring in a mediator to address conflicts among family members.  Estate attorneys have acted in this role may times; however, this may cost the estate valuable funds for less valuable items.

Clients in the past with concerns about the distribution of tangible personal property would specifically note the disposition of certain items of great monetary or sentimental value directly in their Wills.  A negative implication of doing so required the individual to have a Codicil or entirely new Will prepared if the distribution scheme of such items changed, such as one child falling out of favor and no longer contemplated to receive the family jewels.

Some clients went a step further and incorporated language that allowed the individual to create a memorandum outside of their Will that would provide advice to the Personal Representative about the distribution of certain assets.  This frame work allowed the Will to stay intact and permitted the individual to change their mind regarding distribution of certain assets to certain family members.  This memorandum, however, was simply an expression of the individual’s desire or road map for the Personal Representative, but it had no legal significance.

With the enactment of the Uniform Probate Code, Massachusetts has now permitted these “tangible personal property” memoranda to be legal binding if they are specifically referenced within the Will.  One of the best features of these memoranda is that they are easy to create and change in the future if needed.  Moreover, in most cases, any future changes may not require the assistance of an attorney and new or edited memoranda will not effector necessitate the need for changes to your Will.

Most planning and drafting should contemplate potential and unforeseen issues with beneficiaries and tangible personal property.  If you are concerned about these issues, you should evaluate your current estate plan contact an attorney to discuss your options.Duck

About Jason Port

Jason is an associate in the firm's Trusts and Estates Group, Family Law Group and Land Use Group. He focuses his practice on estate planning, estate administration, guardianships, conservatorships, probate litigation, elder law matters, family law controversies and residential real estate transactions.
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