Can I Include Personal Belongings in My Will?
By: PATTI SPENCER
Elder Law Associates Newsletter dated April 17, 2018
Who Gets the Grandfather Clock?
If you want your daughter to get the grandfather clock that is a family heirloom, should you put it in your will?
Many lawyers and advisors will advise against mentioning it in the will. But, it really is the best to include it in the will.
If you want to make sure "the clock" goes to your daughter, you have two choices:
- You can make a lifetime gift, get the clock out of your house, make sure she takes possession of it, and document that it was a gift.
- You can make a bequest of the grandfather clock to your daughter in your will. All other methods are not certain, being not legally enforceable.
If you are unable or do not want to gift the personal property during your lifetime, it is best to include it in a will.
Personal Property and Taxes
Many folks believe if tangible personal property is not included in the will, then it doesn’t need to be included in the federal or state death tax returns. This is not so.
When a person dies, all of their property is subject to tax at the date of death value. With the federal estate tax exemption at $5.43 million, very few estates witness this problem. States that have an estate or inheritance tax, will still present an issue. You wouldn’t omit to report a $20,000 bank account, so don’t omit a $20,000 grandfather clock.
Another reason to include specific mention of a personal item is to avoid arguments (and family feuds) among beneficiaries.
Parents say, “Our kids won’t fight.” Remember, they are the same kids who couldn’t agree on what to watch on TV. Lawyers make lots of money representing family members fighting over family “stuff.”
Even items that are not valuable, but have significant emotional value, can cause horrendous family disagreements.
The cookie jar that Mom always kept filled with fresh baked cookies can become the focus of all kinds of family resentments. When families fight over the cookie jar, it’s not about the cookie jar, it’s about old hurts and grudges, deep-seated emotions. Every family has them.
List or Memorandum
The harder question is where to draw the line. It’s easy to see that the $50,000 grand piano should be in the will or the $70,000 classic car. But we don’t really want to prepare wills listing the recipients of the crystal ashtray, the clown figurine, and the pink lamp. The usual solution for items that are not valuable, or are not emotional lightning rods, is to provide in the will that you may leave a letter, list, or memo with your will which expresses your wishes about the distribution or division of tangible personal property. Such a document is not legally binding, but most families will respect wishes expressed that way. The legal word for this is “precatory.” It is an expression of hopes, wishes, and desires, not a legally binding direction.
The other advantage of such a list is that it can be changed and added to without the formality of making a new will or codicil. However, it is important to note in order to a list to be incorporated as a reference in a will, the list must be complete and in existence before the will is signed.
It is virtually the same as putting the items in the will. With the disadvantage that it could be lost or changed after the will execution and invalidated.
A separate writing containing a list could possibly be validated as a codicil. If it is signed, dated, and witnessed (or whatever are the requirements for execution of a will or codicil in your jurisdiction).
As always, it is important to for you to take the time to consult competent counsel on how to make sure your wishes, with regard to how your “stuff,” is distributed properly.