Taxation & Estate Planning

Who gets your stuff when you die? Personal property dispositions

By Deirdre Wheatley-Liss

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

Full post as published by New Jersey Estate & Elder Planning Blog on August 12, 2010 (boomark / email).