For many, a will is as simple as leaving all of your assets to your spouse or equally divided between your surviving children. For most, however, wills are more complicated than that and require the creation of personal property memorandums.
Personal Property Memorandums Provide Clarity
Personal property memorandums help to distill and clarify your wishes in a detailed manner. Not only does this help your successors gain a better understanding of your estate plan, but personal property memorandums are also a tremendous help for your estate plan’s trustee or executor.
The personal property memorandums:
- Identify assets you own (property, financial, collectibles, heirlooms, valuables, and possessions, etc.)
- Specifically, lists who you want to inherit individual or divided assets
- State detailed percentages for the division of financial assets or the financial value of sold assets
Without a legally sound estate plan, including a will, trust, and/or personal property memorandums, you risk having your estate sent to probate, which is a much more costly, complicated, and emotionally challenging situation for your heirs and beneficiaries.
Your will’s memorandums can evolve, change, and shift as often as you like. In fact, we heartily encourage clients to revisit their estate plans regularly for this very reason.
7 Considerations for Your Estate Plan’s Personal Property Memorandums
Here are things to consider and discuss with your estate planning attorney. Also, worth noting, while handwritten/typed wills are more contestable in court than those drawn up by an estate attorney, they are still valid. So, if you have yet to put in place a legal estate plan, we highly recommend getting something in legible writing – and signed by your (and/or your spouse if relevant). There is no notary or witness signature required, although those can help to strengthen the document’s legitimacy.
Choose your trustee or executor wisely
We can’t emphasize this enough. So often, our clients immediately state their eldest child as trustee or executor of their estate. Perhaps your eldest is the best choice, but you should be clear on that before making a designation.
Subjectivity (intimate connection to the deceased) is not always the best attribute for an estate plan trustee or executor of a will. The more complicated the estate plan, the more this is true.
Read, Naming A Trustee, to learn more about who makes the best candidate for this very critical role.
Prioritize items with the most value or with highly-specific intent of allocation
The most sustainable wills or estate plans are those in which only the most valuable assets are included in the personal property memorandums. Itemizing all of your household furniture and who should get what, for example, can make it more difficult to manage your will because you would have to revisit and amend the will constantly – rather than annually or every other year – to change anything that’s been sold, broken, donated, etc.
That said, if there is a particular non-valuable furnishing or item that has meaning to a particular person, and you want him/her to inherit it when you die, that is worth mentioning.
Know that personal property memorandums are separate from the will
The personal property memorandums are not the actual will; a will is a separate and primary document. Rather, personal property memorandums are referred to in the will and are used to subsidize its instructions.
Your trustee/executor cannot go against the will and/or the statements included in the personal property memorandums
No matter how insistent someone is – and even if they have a voice recording or video of you saying it – your trustee cannot go against the stated wishes in the personal property memorandum states. The document(s) stands as the ultimate “final say” in the matter.
Consider having a family discussion or two about it
Estate planning attorneys are well aware that our culture isn’t all that comfortable speaking about incapacitation, death, dying, and who gets what after we die. However, that murkiness often leads to challenging and emotionally trying situations for heirs and beneficiaries. Even the most selfless of children, grandchildren, or close friends can feel hurt when something you said would go to them is swooped up by someone with seniority because there is no statement proving hearsay once you’re gone.
Creating a draft of your personal property memorandums and then having a family discussion or two about it – sharing copies with your spouse and children – can be a wise way to provide smoother sailing ahead when the estate plan is activated.
You may learn that certain items – even the smallest of things like a random painting on the wall or a small tchotchke – has significant meaning to a particular family member. Or, you may find out something a child once valued is less significant now but means far more to a niece or nephew. In any case, being as transparent as possible with your family while you’re alive simplifies things when your estate plan is put into place.
Do your part to avoid family confusion, hurt feelings, or fights
We can’t repeat this enough. Without a detailed property memorandum, you are putting your estate at much higher risk for being fodder for the courts and family feuds. Even the closest of families struggle to navigate the wake of their loved one’s deaths and the grief, sadness, any held resentments, all rise to the surface and can stymie the settling of your estate.
It is much harder for family members to argue or fight, even if there are hard feelings when your wishes are clearly stated, written, and signed.
Set specific intentions for step-children/grandchildren
Today’s modern families almost always include a blended branch of the family tree that includes step-children, step-grandchildren, former in-laws who are still close, etc. Personal property memorandums are essential if you want to include members of the family (or extended family) who wouldn’t typically be included if the estate winds up in a probate court or if a weakly-drafted will is contested by your current spouse or blood relatives in court.
Would you like support as you create your estate plan, a will, and personal property memorandums? Schedule an appointment with Tseng Law Firm.