Breaking Up (the stuff) is Hard to Do … – Spring 2018

George Carlin once said that a house is a just a pile of stuff with a cover on it.

Lawyers refer to stuff as “tangible personal property.” That way they can use three words containing 24 letters when one word with five letters will do for most purposes. Leaving stuff to your heirs can create heated fights and lifelong resentment about who gets what unless you put some thought into how you do it. On the other hand, if you are malicious, you can just ignore the whole thing.

The nice thing about leaving stuff to your heirs is that it may help your loved ones remember you or learn about family history. But when it gets down to “Who gets the watch? Who gets the china? Who gets the portrait?” things can go badly, causing lasting scars. Sure, value can be an issue (and it will be if your stuff consists of a pile of old National Geographics and a Stradivarius violin), but a bigger issue is that something may be “one of a kind” and an emotional tie between you and a loved one.

What should you do? Name items of significance and who gets them in your will. For example, “I give my Stradivarius violin to my son, Itzhak, if he survives me, and if he does not survive me, I give it to my uncle, Jascha, if he survives me, and if he does not survive me, I direct my personal representative to sell it and add the net proceeds the residue of my estate.”

In addition, Massachusetts permits a “tangible personal property memorandum” in which you can indicate who should get your stuff (not including money) when you die. We have seen this done in a very meaningful way, where an item is photographed or described in detail, and stories of its provenance, any pertinent history and an explanation of why the recipient is getting the item are provided (“I’m leaving my 50 year collection of National Geographic Magazine to Aunt Gladys as a reminder of the trips on which she promised to take me”). You can simply make lists, or suggest categories of gifts that should be split up among a specified group (“Each grandchild should select a painting by way of round robin”) or have family members tell you what they want in advance (hint–they will all want the Stradivarius) and note those requests in your memorandum. The law doesn’t specify a format, but the items and intended recipients must be described with “reasonable certainty.” A memorandum can be binding, which means it becomes an accessory to the will and is submitted to probate, or nonbinding, which means that it is an expression of your wishes and you hope your personal representative will respect those wishes, but it is not enforceable. A tangible personal property memorandum must be dated and signed and should be kept with your copy of your will or another location where it will be found. You can add new items by a separate listing attached to the original memorandum. If you are changing a recipient, it may be better to destroy the earlier memorandum and create a new one.

There is no magic formula to leaving stuff to your heirs seamlessly and easily, but as is often the case, some planning can make things easier for those you leave behind.

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