You may have that special ring that you want your daughter to have after you are gone. Or you may have Grandma’s antique bureau that your son has always admired. You may want Auntie’s antique silver tea set to go to another daughter.
According to a recent study, about 30% of both baby boomers and their parents felt that personal possessions of emotional value were important to leave to their children. Although these personal possessions may not have much monetary value, they can have significant emotional value to your loved ones.
Some other examples of personal property that have emotional value are the tea cups that Auntie always used during your visits with her, Grandma’s stool you would sit upon in your youth while you chatted with her, or Mom’s candy dish from which you grabbed candy when you came to visit. Personal possessions with emotional value also include pictures, journals and other family histories and genealogies.
Even household items that are used on a daily basis can have emotional value, like Mom’s favorite mug or the manual can opener Dad always used because he refused to buy an electric one. I know of one instance in which Mom’s favorite pajamas were recycled and used to make pajamas for Teddy Bears, which were then given to each of the grandchildren.
I have seen numerous families split apart over stuff which has very little monetary value, but a huge emotional value. How do you divvy these up among your loved ones? When you have your will or trust drafted by your attorney, you could put the entire list in your will or trust. If you change your mind or give something during your lifetime to someone else, you would have to go to your attorney and have your trust or will redrafted, all for a fee of course. Is there a better way?
You should talk to your family while you are still alive and well. Find out who wants what and then write it down. For example, when I was growing up, my grandma told us that she wanted to leave something to each of her 13 grandchildren so that we could remember her. So we thought about it and each picked something that reminded us of Grandma and talked it over with her.
I chose an old living room side table. It wasn’t particularly valuable, but it was the table next to which I would sit chatting with Grandma while she crocheted. We would put our beverages on coasters on the table.
Grandma wrote each of the grandchildren’s names on a white sticky label and then stuck a label on the item each grandchild was going to inherit after Grandmother was gone. Grandma did the right thing by talking it over with us grandchildren and having us choose the memento which would remind us of Grandma.
However, when Grandma and Grandpa died years later when I was in my 30’s, the labels had long since dried up and fallen off the items. The distribution of Grandma and Grandpa’s stuff was random and Grandma’s intentions were lost. I never did get that table. I don’t know if Grandma’s little end table that I treasured ended up as a cherished possession of someone or was just used up and ended up as firewood or donated to a charity resale shop.
Instead of putting it in your will or putting labels on things, you can have a provision in your will or trust that is often called a memorandum clause. That memorandum clause says that if you leave memorandums with your will or trust designating where your stuff is to go after you are gone, then those memorandums can be a legally binding document and amendment to your will or trust.
For example, when I used to visit a favorite aunt, I always admired an antique silver-plated candy dish in her living room. When she passed away, she left lists of things to be distributed to her loved ones. I received the candy dish and it now sits in the lobby of my law office filled with candy. Every morning when I come into my office, I see Auntie’s legacy to me.
There were few disputes about who was supposed to get what from Auntie’s estate. If someone said, “I want this,” then we could point to the list and show to whom it went. Auntie’s lists resolved a tremendous amount of potential disputes over Auntie’s stuff.
I have seen some people put together lists on the computer, but without the proper authentications of signatures and/or witnessing, they may not be binding. If you want a distribution list to be legally binding, it has to meet the legal requirements for a will or trust. The list must be signed and dated by you.
If it is entirely in your own handwriting, your dating and signing it is enough. However, if it is a typewritten or computer generated list, in addition to the date and your signature, it must be witnessed and signed by two unrelated persons who could be available to testify after you are gone that those were your wishes and you were of sound mind. If the list does not meet the legal requirements, it may still be enforceable, but only after court approval.
So go ahead and throw out your sticky labels and pull out your spiral bound notebook or fire up your computer and start making your lists. To make sure that your wishes are going to be followed, properly document them so that you can be assured that when you are gone, you can give what you have to whom you want, the way you want, when you want.
By: Matthew M. Wallace, CPA, JD
Published edited July 24, 2011 in The Times Herald newspaper, Port Huron, Michigan as: Everyone can win who-gets-what game