In Tim O’Brien’s famous novel about the Vietnam War, The Things They Carried, the soldiers all carry physical trinkets that have symbolic meaning, each revealing deeper truths about their personal stories. The novel illustrates the fact that items of tangible personal property often have high sentimental value regardless of their actual fair market value. As a result, items of tangible personal property can be an important component of an estate plan. There are several methods for distributing items of tangible personal property through an estate plan.
1. Part of the Residue
If you are not sure how to divide up items of tangible personal property, or if you do not feel that any item has a particular significance to a specific beneficiary, then you may want to consider allowing items of tangible personal property to be distributed as part of the “residue” of your estate. For example, if you decide to leave your estate to your three children in equal shares, your Fiduciary will be instructed to distribute your items of tangible personal property as evenly as possible. Rather than cutting into thirds your piano, your hockey sticks, and your Gwen Stefani poster, your Fiduciary and beneficiaries might agree that Ray gets the piano, Gordie gets the hockey sticks, and Pharrell gets the Gwen poster.
2. Specific Method
You might be concerned that your Fiduciary and beneficiaries will have trouble in determining how to evenly or fairly distribute items of tangible personal property. In order to prevent arguments and ill will, another option is to set forth a specific method for allowing the beneficiaries to choose items of tangible personal property in a fair manner. For example, your Fiduciary might ask each of your beneficiaries to draw straws or pull a name out of a hat to determine an order of selecting items of tangible personal property.
3. Specific Gifts
If you are pretty sure that a particular beneficiary should receive a specific item of tangible personal property, you may specify such a gift in your will or trust prior to your Fiduciary distributing the remainder of your estate. For example, you could specify that Ray is to receive your piano, Gordie gets your hockey sticks, and Pharrell gets the Gwen Stefani poster regardless of their particular value and that the rest of your estate is to be evenly divided. If you choose this method, you’ll want a specific instruction in the event that your named beneficiary pre-deceases you. If you think any such item might have a high value (such as the Gwen poster), you’ll want to consider whether to include a provision that states whether the specific item of tangible personal property is subject to death taxes.
4. Separate Writing
When drafting your estate plan, you might not be sure whether you want to direct specific items of tangible personal property to certain beneficiaries. Instead, you might decide that you prefer to make a list in the future instructing your Fiduciary on how to distribute such items. With this method, if you later change your mind, it would be rather simple to execute a new separate writing rather than going through the expense and effort of formally amending your estate plan.
For years, the California Probate Code did not permit reference to a separate writing that was not in existence at the time the estate plan was executed. The concern was that a devious person after the death of the testator might create a false writing naming a different beneficiary. However, utilizing a later-created separate writing proved to be a popular for its flexibility and simplicity. Finally, the California legislature passed what is now Probate Code Section 6132 which allows for the disposition of tangible personal property by a later writing under certain conditions. The conditions include limitations on what types of items and the value of such items that may be distributed in this manner.
Some observers worry that these limitations could inadvertently invalidate a testator’s wishes. As a fail-safe, for trust-based estate plans, you might want to consider specifically allowing for the disposition of tangible personal property by a separate signed writing and instructing that such a signed writing shall be considered a valid trust amendment.
KRASA LAW is located at 704-D Forest Avenue, Pacific Grove, California, and Kyle may be reached at 831-920-0205831-920-0205.
Disclaimer: This article is for general information only. Reading this article does not establish an attorney / client relationship. Before relying upon any of the information included in this article, you should consult a competent attorney who is licensed to practice law in your community.