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The Montana Estate Lawyer

Friday, January 26, 2018

Use of a personal property memorandum – sometimes you need to sweat the small stuff

An elderly woman has an estate worth $450,000, all in a brokerage account. She has four children and a last will and testament stating that she wants each child to receive 25% of her assets after she dies.  The situation seems simple enough. The woman has a legal document in place, a will, that contains specifics on how she wants her estate to be passed on to her children. However, this woman's death would result in a long, expensive and ugly fight between the children. The legal proceeding is now over, but so is their family relationship.

What was the issue? What caused the rift was a single item of personal property, handmade by the father before his death several years earlier, and owned by the mother at her death. Its monetary value was worth less than $100, but it's sentimental value to the family was priceless and more than one child asserted a right to ownership of the item when the mother died. When the mother died she left no clear directive as to who was to receive the item, just a scrap of notepaper and contradicting expectations of the children.

Unfortunately, family fights among children after death occur in a larger percentage of families than one might think, and often it is a fight over the "small stuff" – – tangible personal property. Examples of tangible personal property include jewelry, clothing, antiques, furniture, artwork, photographs, music collections, guns and collectibles. These items, which often have a small monetary value but significant sentimental value, may be more difficult to deal with, and more likely to result in disputes, then big-ticket items.

When it comes to distributing items of tangible personal property, especially items of sentimental value, the use of a personal property memorandum can avoid the family fight and conflict described above. Setting out every gift of personal property in your will or trust can be cumbersome and can become easily outdated over a relatively short period of time. A better solution is often to prepare a personal property memorandum to provide instructions on the distribution of tangible personal property not listed in your will or trust. The personal property memorandum is a separate writing, which must be signed and dated by you, describing the item with reasonable certainty and specifying to whom the item is to be distributed. When you change your mind, or add or dispose of items of personal property during your lifetime, you can change your personal property memorandum by creating a new one without having to amend your will or trust.

A personal property memorandum provides clarity and, hopefully, will serve as a means of prevention against family disputes over the "small stuff." As a final note, there is no reason to guess which personal items mean the most to your children. Have the conversation with family to find out who wants what and express your feelings about how you'd like to share your possessions. Having these conversations can make your intent clear to the children.  It also can help you identify potential conflicts for which you may be able to work out acceptable resolutions during your lifetime so your loved ones don't end up fighting over your property after your death.

 Jon

 



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