After the death of a parent, multiple family members may want the same items of property that may not have a high monetary value, but which may be highly valued for sentimental reasons. These items of property may include photographs, jewelry, household furnishings such as dishes or furniture, tools, fishing equipment, or family heirlooms.
Michigan law provides a solution to this problem in MCL 700.2513, which provides that a Last Will and Testament may refer to a written statement or list disposing of items of personal property not otherwise disposed of by the Will, other then money.
A personal property memorandum is designed to cover who should receive property owned by you which does not have an official record of title, such as a deed for real estate or stock certificate. Personal property includes furniture, jewelry, art, and other collections, as well as household items like china and silverware. Personal property does not include real estate, vehicles, business interests, money and bank accounts, stocks or bonds, or investment accounts, so these items cannot be distributed on a personal property memorandum.
When writing your memorandum, it is best to keep things simple. Personal property memorandum generally resemble a list of items with a corresponding list of the person you want to inherit the items. It can be handwritten or typed but should always be signed and dated. Also, a list like this works best for items that do not have a high monetary value, such as a print of a Picasso painting. If you actually own an expensive Picasso painting, who gets that should be listed in the Will or Trust, not in the personal property memorandum. The reason for this distinction is that due to their informal nature, personal property memorandums are easier to forge or alter, so expensive items should not be listed on them. Wills and Trusts have much more stringent signing requirements, so when those requirements are met, the directions contained in the Will or Trust for distributions of valuable personal property are much more likely to be effective, and therefore legally enforceable, when the entire estate plan had been drafted by an experienced estate planning attorney. Also, for expensive items like a Picasso painting, it is more important to list one or more alternate people who will inherit the item if the first person you designated is not living at the time of your death.
The following are the legal requirements in order for a personal property memorandum to be legally effective
- your Will and/or Trust must state that you may leave such a list;
- if you are using a living trust to distribute your estate, your attorney should also draft an Assignment of Personal Property that defines what you mean by tangible personal property and generally describes the property to be disposed of by the list, i.e., "household furnishings" or "electronic equipment;"
- the list must describe the items to be disposed of in it with reasonable certainty; and
- it must be dated signed by you.
In addition to those legally requirements, in order for the personal property memorandum to actually work, i.e., distribute items of personal property with no or minimal conflict, the following practical considerations should be addressed:
- you need to have a discussion with your children or other people who are going to inherit from you about what each of them wants. If you think Claire really wants your turquoise brooch that you got from your aunt but it turns out she doesn't like it and really wants your journal of the 2 months you spent following the Doors on tour in 1968, there is no point in leaving the brooch to Claire in the list, especially when her sister Jennifer really wants the brooch.
- Having this discussion will tease out who wants what or, in some cases, you will learn that nobody really cares about your stuff, in which case you can save yourself some time and work by not filling out the personal property memorandum.
- If this discussion reveals that multiple people want the same thing, then you will need to decide who gets it and make sure the other person gets something else that they really wanted. I recommend having a frank discussion with each of them so each of them knows you were aware both wanted the same item, that you have attempted to divided the items up fairly, and because one of them got something they both wanted, the other got something else they really wanted. If your beneficiaries know you knew they both wanted the same thing, the person who did not get it (or their husband or wife) will not be able to make trouble by claiming you would have left it to them if you knew they wanted it, someone else filled out the list for you, etc. In other words, if you have this conversation, everyone is more likely to honor your wishes.
- The list should be simple. It should describe the property and who gets it. There should be no conditions or additional language that is open to interpretation or that my conflict with your Will or Trust. Ambiguities lead to extra legal work or the need to go to probate court, which may slow down settling your estate and increase the attorney fees.
- The Will or Trust should describe who gets the rest of the items of tangible personal property that you own that are not distributed on the list. Provisions to consider including in your Will or Trust are
- that your personal representative or trustee may utilize a rotation system so that your heirs select the other items they want (that you did not put on the list) whereby they each pick one item and repeat the process until everything has been divided up.
- Alternatively, you may give your personal representative or trustee the authority to divide these items up amongst a group of people that you define.
- Another option is that the personal representative or trustee has an estate sale (an estate sale is a nicer way to say there is going to be a big garage sale after your death) and then divides up the money amongst your children or other beneficiaries.
One of the benefits of using a list of personal items and their planned distribution is that if you later decide to change who receives what, you simply update your current list, or replace the list altogether. You can destroy an old record so that it is easy to identify your most current set of wishes.
A personal property memorandum for your tangible personal effects is an important part of an estate plan to address how you want your personal property to be distributed. It is important because I have seen siblings spend thousands of dollars in attorney fees arguing over what people outside the family would consider knick-knacks, stinky old furniture, or junk. A well drafted Will or Trust along with a personal property memorandum, completed after following the recommendations above, can avoid these costs and family feuds along with the potentially permanent damage to family relationships that can occur when the distribution of your stuff is not addressed properly
As part of my estate planning and elder law practice in Troy, Michigan, I help my clients coordinate the distribution of their personal property with their Will or Trust and provide them with a personal property memorandum that complies with Michigan's law and is easy to use. Call me or fill out the "Contact Us" form to the right if you would like help with your estate planning.