99.9% of all Wills and Trusts have a section about personal property. Most leave all personal property by a memorandum, then to the surviving spouse, or if no surviving spouse then to the kids in “substantially equal shares”. Sounds so innocent and benign. But I have had more fights between heirs occur due to personal property issues than anything else.
First of all what is personal property? It is almost easier to say what it is not – it’s not your money, investments, life insurance or real estate. It’s your “stuff”. Remember that old saying that “Possession is 9/10ths of the law?” I like the Scottish version the best “possession is eleven points in the law, and thy say there are but twelve.” Or there is this: “finders keepers….” The ownership of personal property is very difficult to prove if you do not possess it. There is seldom any “title” to it – except for motor vehicles. Sometimes you have a receipt as to who bought it, but that doesn’t prove you still own it…now I have gotten way off the point I wanted to discuss. The transfer of personal property at death. How do you give and control personal property after you die? The answer can be “with great difficulty” if you do nothing, or even when you do everything correctly.
If you no longer use the property, or care to have it around you, then the best thing is to gift the property while you are still living. You get the benefit of seeing the joy the gift brings to the receiver of the property, and it ensures that the person you want it to go to actually gets it. The next best thing is to make specific gifts in your Will or Trust. However, this can be very expensive if you want to change the gifts by adding or subtracting to the list because you have to amend your Will and Trust. This is why the law allows the use of a personal property memorandum. As long as you follow the law, then it can be enforced against people who took the property without permission or against others who say “Dad said that was go to me when he died.” Every one of our clients who have had a Will or Trust created by Goldberg Law Center, P.C. has a personal property memorandum. The Colorado Statute states that your Will or Trust must refer to the written statement, that the writing has to show that it is intended to dispose of tangible personal property at your death, that the items and people that the property is to be given have to be described with “reasonable certainty” and the writing must be signed and dated. You can add, subtract or change gifts using this document without getting your attorney involved. DO NOT cross out gifts or scribble changes next to gifts and initial the changes. These changes are suspect. To insure the changes can be enforced, re-write your memorandum from the beginning and sign and date it.
The legal requirement of “describing with reasonable certainty” is where things tend to fall apart. I have helped so many clients prepare these lists, and I think we have done a fantastic job of describing the property “my 17 inch graduated pearl necklace to Jane Doe”. Then the client dies, and I discover several 17 inch graduated pearl necklaces. Or, low and behold, there are two Jane Does and the client never told me about the second one. I have learned that the best lists also refers to a picture in a personal property picture album. For example “17 inch pearl necklace pictured at number 7 in the personal property picture album, to cousin Jane Doe of Saginaw, Michigan. Then make sure you take a good picture of the pearls and clasp and maybe even a picture of Jane.
You can also put a sticker on the property itself (works best for pictures, furniture, and things that are not worn or used very often.) Just remember stickers tend to fall off over time, or can get mysteriously switched.
Most clients complain that their kids don’t want anything. This may be true, but it may also be because your children don’t want to think about your death, or don’t want to feel like vultures waiting for you to die to get your property. Listen to your children when they are home visiting. “Mom, I love this old springerly rolling pin.” “Dad, I have such great memories of us fishing with this old fishing rod.” Even if these things don’t have any monetary value, these are the things the kids will fight over – the stuff that have memories associated with them.
Then there is my husband’s family. “Mom, can I have your Corvette Stingray when you die?” If you said that loud enough at Christmas or Thanksgiving then the whole clan descended on you in outrage (yes I admit to doing this just to stir the pot.) “Mom has already given the car to me!” “No she didn’t! She gave it to me!!” Mom used to just shake her head and say that she was just going to sell it before she died. Of course she didn’t. But she also did not specifically gift it to anyone either. It is causing some hard feelings among those members of the family who were not joking, but now the Personal Representative can distribute it to the highest bidder and it will come out of that person’s share, or he can just sell it. Too bad the two who are fighting over it are his daughter and his youngest brother. Guess who is the “bad guy” in this scenario?
We haven’t even touched on how to keep property from walking off after your death. That will be a topic for another day.
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