What is tangible personal property? According to Wikipedia, tangible personal property refers to any type of property that can generally be moved, touched or felt. These generally include items such as furniture, clothing, jewelry, art, writings, or household goods. Pets and livestock are also considered tangible personal property. While reward points, frequent flyer miles, season ticket programs, and private club memberships are technically not tangible personal property, it is practical to include them within the definition of tangible personal property in your Will or Revocable Living Trust.
Ownership of tangible personal property should be transferred to a Revocable Living Trust by a general assignment of property. The main reason to do this is for probate avoidance and ease of administration. Using a separate writing to list the items and the beneficiary who should receive such item should be a must do on your list. Clients often have a long list of family heirlooms that they would like to have distributed to specific individuals. Pictures are high on the list of items that we often hear beneficiaries having disputes about.
A specific gift of an item of tangible personal property should provide sufficient description to clearly distinguish the item from other similar items. Using a digital camera and then assigning each piece a specific number is the best plan particularly with jewelry. It is impractical and unrealistic for the testator to specifically divide all tangible personal property. Instead, the Will or Revocable Living Trust should identify a method for multiple beneficiaries to receive the testator’s tangible personal property. Blended families may experience additional conflict because children of the first marriage may want certain items that remind them of their parents’ marriage.
There are different methods to use for division of tangible personal property. Your Executor or Trustee can have sole and absolute discretion to divide the property or you can allow your beneficiaries to divide in as equal shares as practicable with the Trustee selling or distributing all property over which there is a disagreement. Beneficiaries may draw straws to determine an order for selection — who goes first, second, etc.? A silent auction can also be held.
Keep the separate writing in a safe place with the testator’s original estate planning documents. It is not recommended that copies be provided to anyone other than the estate planning attorney and the fiduciary. Since the separate writing is a legal document and must comply with the applicable state laws, the preparation, execution and safekeeping of the document should be done with the advice and supervision of an estate planning attorney. If there is a conflict between the express provisions of the Will or Trust and the separate writing, the Will or Trust will prevail.
At SinclairProsser Law, we can assist you with creating a comprehensive estate plan for you and your family. Our goal is to implement a plan that our client is comfortable with and is able to understand and carry out.
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