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What Is A Personal Property Estate Memorandum In An Estate Plan?

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When you make a will as part of your estate plan there is a portion that is reserved for specific bequests or items that you want to give to a person. Instead of listing all of your personal property one by one in your will there is a manner that will allow you to give items away to specific people in a much easier way.

A Personal Property Memorandum (PPM) that is available in most states is a document that is separate from a will that is referenced in a will that allows the maker of the will to dispose of tangible personal property in a matter and time they later wish. This means that when you make your will all you have to say is that there will be a PPM and it will be acceptable. Tangible personal property is property that you can touch such as household items as furniture, but not property with a title, such as a car, or intangible physical items such as a stock certificate or cash. The Personal Property Memorandum can be in your own handwriting or typed as long as it is signed and dated. You can change or update the memorandum at any later time without the need of an attorney or notary public.

All household tangible property that a married couple own automatically pass to the surviving spouse in some states, so it is only necessary to include items on the memorandum that would not go to the spouse, such as a family heirloom to a child. For an unmarried person all household tangible property would pass in the residuary of the will, or all assets not listed as a specific bequest in the will, so it would only be necessary to name items not going to the person listed as the beneficiary of the residuary under the will. You can gift items before you die, but after death items in the house cannot be gifted unless as directed under the will or personal property memorandum. Just because an item was designated verbally, such as a child should get my antique vase, has no effect unless it is included in the will or memorandum. It is important to give away items that have a high sentimental value to a specific person before you die or in a memorandum because these are the items that cause the most family fights even when the items have a small monetary value.

 

What You Can and Cannot—Leave in a Property Memorandum

You can use a property memorandum with your will for items of tangible personal property, which includes:

  • Furniture
  • Art, jewelry, and collections
  • Vehicles (in some states)
  • Furniture and household items such as china and silverware

You cannot use it for real estate or for intangible property such as:

  • Money, including bank accounts
  • IOUs
  • Stocks or bonds

In most states, these memoranda are not used to leave tangible business property.

A personal property memorandum has no effect unless you also leave a valid will that specifically refers to it. For example, your will might say:

“If I leave a writing separate from this will that disposes of some or all of my tangible personal property, whether the writing is executed before or after I execute this will, I direct that the writing be incorporated into this will and followed by my personal representative. If my personal representative cannot find any such writing within thirty days after my death, my personal representative may presume that no such writing exists and shall distribute my tangible personal property in accordance with the provisions of this will.”

 

What the Memorandum Should Look Like

Your memorandum doesn’t have to be anything fancy; most of these memos look like lists of items and the names of the people who are to inherit them. You can hand-write the memo, or type it and print it out. A typical memorandum might start out like this:

Personal Property Memorandum

I bequeath the following items of tangible personal property to the beneficiaries listed below:

Set of bone china (purple violets pattern) inherited from my grandmother: Tiffany L. Jones, my niece

Cherry wood dining room table and matching china cabinet: Stephen M. Steinhausen

You can hand-write the memo, or type it and print it out.

 

Some things to keep in mind as you write:

  • Don’t include items that you’ve already specifically left in your will. You don’t want the memorandum to contradict your will.
  • Clearly describe items so that they won’t be confused with a similar item. Many statutes require that objects be described “with reasonable certainty.” The point is to make it possible for your personal representative (executor) to identify the objects and distribute them to the right recipients.
  • If there’s any reason to think that your personal representative won’t know who a beneficiary is, or how to get in touch with a beneficiary, include information that will help, such as the person’s address and relationship to you.

 

When you’re finished, sign and date the memorandum. Not every state requires memoranda to be dated, but it’s always a good idea. If you end up making more than one memorandum over your lifetime, the latest one will be the one that is followed after your death. You don’t need witnesses to watch you sign, and you don’t need to have your signature notarized.

 

Keep the memorandum with your will, in a place where your personal representative will be able to find it easily.

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
  1. 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.
  2. Alternatively, you may give your personal representative or trustee the authority to divide these items up amongst a group of people that you define.
  3. 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.

 

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. 

 

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.

 

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.

 

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.

 

If You Change Your Mind

One of the best features of these memoranda is that they’re so easy to change; you won’t need to consult a lawyer, even if a lawyer drew up your will and original memorandum. And making a new memorandum—or simply tearing one up without replacing it—doesn’t affect your will. If you want to make changes, don’t cross out anything on your existing memorandum. Instead, make a new memorandum and throw the old one away.

 

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