A Very Effective, But Overlooked, Estate Planning Tool:
The Personal Property Memorandum
By C. Margaret Tritch
The Personal Property Memorandum must have a valid Will or Trust referencing it.
It can be handwritten and must be signed and dated. It does not require a witness to be present.
It can be typed and then signed and dated. However, I advise to have your signature notarized if you type the document to remove challenges to its validity.
The item being gifted must be described in a clear manner, so it is not confused with other items. Sometimes our clients have photographed artwork or jewelry, and we attach the photos to the Personal Property Memorandum. Photos can be easier than descriptive words at times, when you have more than one item of a similar description.
It can be created before or after the Will or Trust that references it.
It can be revoked by destroying it and creating a new one. It should not be amended.
If an item you have designated in your Personal Property Memorandum no longer exists at your death, then the gift fails, unless you have provided a substitution.
When you are married, you may dispose of your separate property and one half of the community property, but not your spouse’s property. Spouses will often indicate that a specific item passes upon the second spouse’s death or will indicate that some items will pass on their death and ensure their spouse is aware.
Items acquired after you created the Personal Property Memorandum can still be covered without requiring you to create a new Personal Property Memorandum. As an example, if I indicated that all of my rings go to my daughter, Elizabeth; then the rings owned by me at my death would pass, regardless of when acquired, to Elizabeth.
When the Executor or Personal Representative is instructed under the Will or the Trustee is instructed under the Trust to give the decedent’s personal property to a group of people, this leaves that person in a vulnerable position with the beneficiaries to argue with him/her. This is especially harsh when that is usually an unpaid family member, who is just trying to do their best.
If there is a conflict between what the Personal Property Memorandum gifts and the Will or Trust gifts, the Will or Trust will usually govern. But you want to know what your documents say on how a conflict is resolved.
Disclaimer – This article is for information purposes only. It is not intended to provide legal advice to anyone. If you require advice, you should reach out to our firm or another lawfirm to discuss your facts and circumstances to obtain legal advice.