Many individuals want to give family heirlooms or other items with sentimental value to specific loved ones in their estate plan. While these items can be listed individually in a last will and testament or trust, using a tangible personal property list is a more flexible alternative. Specific legal requirements must be satisfied to use this option. Some important cautions also apply.
The provisions relating to property lists appear at MCL 700.2513, entitled “Separate writing identifying devise of certain types of tangible personal property.” The section states that “a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will, other than money.”
One important statutory requirement for using a tangible personal property list is that your will or trust must reference the list. In addition, to be valid as evidence of the intended dispositions, the law requires that the written statement or list must be in the testator’s writing or signed at the end by the testator. The written document also must describe the items and recipients “with reasonable certainty.”
The law also provides that:
- The will may refer to the document as “one to be in existence at the time of the testator's death;”
- The testator may prepare the document before or after execution of the will;
- The testator may alter the statement or list after preparation; and
- The statement may be a document with no significance other than its effect on distributions made by the will.
If you use a tangible personal property list, it is a separate document that does not need to be witnessed or notarized. However, under the law, the list must be either in your handwriting or have your signature at the end. But even if you write the list in longhand, signing it is strongly recommended.
While the statute specifically refers to using a tangible personal property list with a will, you can also use this option for an estate plan that includes a revocable living trust. Whether your primary estate document is a will or a trust, it’s essential to talk with your estate planning attorney before you create a tangible personal property list, to ensure that all necessary legal requirements are met.
Revising Your List
The statute makes it clear that you can make or revise the list at any time, including after you execute your will. A revised or new list must meet the same requirements as the initial list. Dating your list is not required by the statute, but it is recommended, as is destroying all copies of previous lists when you revise a list or make a new one.
It’s also important to keep your list with your other estate documents or make certain that your personal representative knows where to find it.
The statute limits use of the list to “tangible personal property,” which generally means items that can be seen, weighed, measured, felt, or touched. Tangible personal property includes jewelry, art, and most collectibles, as well as furniture and household items like silverware, dinnerware, and fine china.
Real estate is not personal property and cannot be included on a tangible personal property list.
Other assets that cannot be included on a personal property list include:
- Money (cash)
- Promissory notes
- Title documents
- Securities (stocks and bonds)
- Intellectual property rights (trademarks and copyrights)
- Items with beneficiary designations (retirement accounts and life insurance policies)
While you can give specific property items to named beneficiaries in your will or trust, itemizing gifts in those documents could be cumbersome if your list is extensive. Even more importantly, any change in the list would require revision of your will or trust, which would require assistance from your estate planning attorney.
If you use a list, you can make changes at any time. So, if you want to change a beneficiary, add or remove property, or make other changes, it is simple to accomplish. Most often, you don’t even need to talk with your lawyer to make changes.
Instead of designating beneficiaries for personal property, you may allow your loved ones to determine the acceptable division or to leave division of your personal property up to your personal representative. That approach can lead to family quarrels over who should have specific items and put a difficult burden on your personal representative if multiple heirs want a single item.
By using a list, you avoid potential problems with distribution of the personal property in your estate. You also have the satisfaction of knowing that your family members will inherit items that will remind them of your special relationship. You may decide to leave a letter with each gift, explaining why the item was especially chosen for the beneficiary. You also may consider talking with your loved ones before you create the list, to ask if there are specific items they would like to inherit from you.
If you wish to use a tangible personal property list as part of your estate plan, you should talk with your attorney to ensure your plan is properly written to accommodate the list. Your lawyer may suggest related issues that should be addressed, such as what happens if the item is no longer in your estate when you die or a beneficiary passes before inheriting an item.
If your estate plan includes a trust, other concerns also must be taken into account. Your attorney will help you make certain that your estate plan addresses all contingencies and legal issues that may arise in conjunction with using a list.
In some situations, if you have individual items of significant value, it may be better to include those items in your will or trust, rather than putting them on the list, That way, there will be no questions about who receives them. If an item has extraordinary value, the item could have related impacts on your estate, which should be factored into your estate plan.
Regardless of your circumstances, your attorney can guide you through the process of estate planning with a tangible personal property list. After you have everything set up, you can maintain the list on your own, following your attorney’s instructions.
At the law firm of Barron, Rosenberg, Mayoras & Mayoras, P.C., we provide a full range of services relating to estate planning, including structuring an estate plan to use a tangible personal property list for distributing specific items of property to your loved ones. We’ve been serving clients in Oakland County and beyond for more than 40 years. Our clients count on our commitment, experience, and credentials when they turn to us for their legal needs.