Page 21 - BusinessWest 2023 Senior Planning Guide

Let’s Not Fight over This Stuff
Distributing Tangible Personal Property Can Cause Conflict
VBY HYMAN G. DARLING, ESQ.
ery often in preparing an estate plan, issues arise over the tangible personal property, also known as ‘the stuff.’ This may include cars, col-
lectibles, the dining-room furniture, Waterford china, and basically any other item in a house that is not attached to the walls. These tangible personal property items are often dealt with separately from other as- sets, such as stocks, bonds, real estate, cash, etc.
Unfortunately, when the client has not provided enough detail in listing the distribution of assets, the tangible property becomes a major issue. Arguments may ensue, and often, the family brings the case to litigation to argue about all these items. In some cases, the family has significant assets to be distributed, but these tangible items become contentious and cause the estate to be litigated and prolonged.
There are several ways in which this matter may be resolved, but the clients need to take the time to prepare properly for the distribution. The first way would be to have a complete listing of the items that may have either sentimental value or material value. The client can either list these items in the will, in which case they may have to be probated, or in other cases, the client can sign a memorandum.
The memorandum is fairly new in Massachusetts, as determined in the Uniform Probate Code, which
was enacted in 2013. A client may now make a listing of assets and the individuals to receive the assets, which may be memorialized in writing and signed by the client, and then merely referred
to in the will. In this manner, if the client desires to change the memorandum, they may merely write up a new memorandum and have it signed and dated and placed with the will, as opposed to having the entire will rewritten.
It is very important in this memorandum to be clear about what items are listed. For example, a mention of a ring or a watch may not be clear enough; perhaps the ring should be listed as the engagement ring with two small diamonds, and
the watch could be listed as the Timex watch with rhinestones.
If there are items that are to be identified more clearly, they also should be listed, so that a painting or picture should state the setting or picture, as well as where it may have been hanging in the house, such as in the den above the piano.
Some clients have made lists and put stickers on the back of items or underneath them with identifying colors such as a yellow sticker for daughter Susie, a white sticker for son John, and green stickers for all the grandchildren. This is acceptable so long as the stickers are still on the items at the time of the client’s death and if someone doesn’t get to the items and move the stickers to different items.
In cases where the client was not clear, there are several alternatives to litigation. The first would be
to have all parties make a list of the items that are important to them and then allocate an item to each person from their lists, taking turns between the beneficiaries. In some cases, clients have had to draw straws in determining who makes the first selection. Once they are finished choosing all of the items,
they can then do their own ‘horse trading’ between
“Arguments may ensue, and often, the family brings the case to litigation to argue about all these items.”
Property
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