Many of my Clients focus on bank accounts, investment accounts, brokerage accounts and real estate. This is understandable. These types of assets generally represent the majority of the value of the Client’s estate. Many Clients are surprised to learn, after a little discussion, that personal property is of significant importance in drafting their estate planning documents. Here are some of my observations:
Items to be devised to a particular person should be described as particularly as possible. When possible, detailed description, identification numbers, and like should be used. Most personal property that my Clients have devised is of significant sentimental value. It is less common that valuable artwork, precious metals, or other intrinsically valuable assets be mentioned. Furniture, jewelry, musical instruments, books and the like are often passed from one generation to the next.
There is a view by some Clients that items of high intrinsic value should not be identified in the will so as to avoid attracting the interest of an estate tax auditor. This should be considered in the context that any such item must be reported and appraised for tax reporting, regardless of the value of accounting for probate purposes. Furthermore, lack of clarity in the will as to intrinsically valuable property can lead to later disputes, particularly if it would otherwise be included in a residuary clause or a devise to a class of devisees.
Having provided representation to estates, I am consistently surprised by the amount of fighting that distributing personal property can cause. To a large extent, the personal property is of little economic value. Most of the fighting seems to arise from collateral issues and the grieving process in general. There should be a way to resolve such a dispute. For instance:
I give all of my household furniture, furnishing, and other tangible personal property to my children to be allocated among them as they agree. If they are unable to agree, my household furniture, furnishing, and other tangible personal property shall be distributed by my personal representative as she deems appropriate, including selection in order of choosing determined by lot or otherwise. I request that a reasonable effort be made to provide each child with an overall distribution off substantially equal value.
Alternatively, a Client may draft a separate memorandum which identifies which personal property is to be devised to whom. In the past, Massachusetts law did not allow for such a document—though non-binding language in the will requested that devisees divide the property as requested. Under the MUPC, a tangible personal property memorandum may be admitted to probate if it is signed by the testator and distributed with reasonable certainty. This can be done before or after the execution of a will, so long as the will accounts for it. This is a great option for those Clients who would be overwhelmed by the task of distributing personal property during the estate planning property or those Clients who are likely to change their minds.
Personal property is an often-forgotten type of property in estate planning. Clients are well advised to consider how, to whom, and what is distributed when their will is probated.
Stiles Law, with offices located in Boston and Marshfield, Massachusetts, offers estate planning services including wills, trusts, powers of attorney, guardianship nominations, and more. Stiles Law serves all areas of eastern Massachusetts–the North Shore, Boston, and Cape Cod, in addition to the entire South Shore, including: Plymouth, Kingston, Duxbury, Hanover, Pembroke, Marshfield, Scituate, Norwell, Cohasset, Hull, Hingham, Weymouth, Braintree, Milton, Quincy, Dorchester, Charlestown, Brookline, Dedham, Canton, Rockland, and everywhere in between..
Copyright © 2018 Stiles Law, All rights reserved. Stiles Law is a Massachusetts licensed law firm and all content is based on Massachusetts law. The information presented above is meant to be used for general informational purposes and it should not be construed as legal advice or legal opinion on any specific facts.