Who gets your stuff when you die? Personal property dispositions

Courtesy of guest blogger Stacey C. Maiden, Esq.  I note as an aside that the question of who get what personal property (jewelery, artwork, china, family photographs, furniture) can often be the biggest source of tension when administering an estate, even if the monetary value is only a fraction of the overall estate.

I was recently reviewing a Will for a client who indicated that she may wish to update her estate plan to leave some specific personal property to various people. Certainly, I could prepare a Codicil to her existing Will to add these bequests, which would mean legal fees and signing the document with the same formalities as a Will. But New Jersey law permits the use of a separate list or memorandum to dispose of tangible personal property not otherwise disposed of in the Will (other than money), which can be created either before or after the execution of a Will. The advantage is that the separate list or memorandum needs only to be either in the testator’s handwriting or signed by him, and can be changed at a whim – no need to go back to the attorney if you decide the china should go to Betsy instead of Susie.

I routinely include language in the Wills I prepare reserving “the right to dispose of certain items of my tangible personal property by a written statement prepared pursuant to N.J.S.A. 3B:3 11.” However, the Will I was reviewing for the client did not have any language referencing the use of a separate list or memorandum.

Revisiting the New Jersey statute and Uniform Probate Code §2-513 (upon which the statute is based), it seems that without reference to the use of a separate writing in the Will itself, the writing can’t be used. The New Jersey statute reads that “[a] will may refer to a written statement or list to dispose of items of tangible personal property…”, thus conditioning the use of the statement upon its reference in the Will. The Official Uniform Probate Code Comment backs this up, stating that as “part of the broader policy of effectuating a testator’s intent and of relaxing formalities of execution, this section permits a testator to refer in his will to a separate document disposing of certain tangible personalty.”

The use of separate writing to dispose of personal property is a topic I cover with clients when discussing their estate plans. It’s important to make sure the Will includes appropriate language for our clients to take advantage of this valuable estate planning tool.

 Image: Suat Eman / FreeDigitalPhotos.net

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Betty Loew - September 8, 2010 7:20 AM

My mother died testate March 25, 2004 and left part of her will hand written as an "additional provision. It stated, "Simultaneously with the execution of this my Will, I am preparing a written statement or list disposing of certain items of tangible personal property in accordance with N.J. S.A. 3B: 3-11, which list may be changed or replaced by me from time to time in accordance with the provisions of the said Statute as circumstances warrant. My father became her executor on her acute death, but had a NEW young acquaintance become his POA and assist him as he was of disposing mind (Taking Aricef for dementia) and body. The entire estate was left to him with the exception of this hand written statement. The he died testate September 19, 2009. I, being his eldest daughter, was his executrix, but had been replaced by this NEW young acquaintance. It has been his more then 6 years and the provisions for we, her 3 daughters, have not yet been carried out and dispersed to us by his POA. This is mostly her diamond jewelry that we know of and maybe other surprises as my mother tended to do. I got a copy of the will from Probate, but not a copy of this list. Should the list ALSO have gone to Probate? Is there anything we can do? Respectfully Submitted, Betty

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