A parent will often make a promise to leave a specific item (furniture, artwork, jewelry, etc.) to a child or friend at the time of his or her death.
However, whether that promise will be fulfilled depends on a variety of factors. Sadly, the most important factor is often who enters the home or apartment of the decedent first, after his or her demise.
Unfortunately, family members or friends with access to the decedent’s home will often help themselves to items that they like or believe was promised to them without advising the named executor in the decedent’s last will and testament, or if the home is owned by a trust, the trustee of the trust. The possibility of this occurring is relatively high unless the necessary steps are taken to ensure that the individuals you want to receive specific items actually receive them. Taking these steps not only helps ensure that your wishes are fulfilled, but helps prevent family members from fighting over who gets specific items of property. I have seen family members spend thousands in legal fees disputing who gets dad’s motorcycle or mom’s engagement ring.
Fortunately, there are several practical and logical steps that one can take to ensure that specific items end up in the hands of the person you want to receive them:
1. Consider giving the specific item to the individual while you are alive and are still mentally competent. When you do, memorialize the gift in writing to prevent disputes as to whether or not it was truly a gift. This option can be difficult, especially if the individual is still using or wearing the specific item. I recall once suggesting to a client that she gift some artwork she owned to her family and her response was, “Never, I love looking at them.”
2. Specifically identify the item that you want a specific individual to receive in your will and/or trust agreement. For example, “I give and bequeath my yellow gold Rolex watch to my son, Michael.” This will help not only identify the specific item and its recipient, but also segregates the item from the other items you may be bequeathing to a larger group of individuals.
For example, “I give and bequeath any and all tangible personal property which I own at the date of my death not otherwise specifically bequeathed herein, to my children surviving me, outright, in equal shares, per stirpes.”
3. Consider utilizing a signed and dated letter or memorandum that is to be kept with your estate planning documents, which specifically details the specific items you wish to be given to whom. Unfortunately, in New York this memorandum is not legally recognized as a way of conveying tangible personal property; however, in some states it is. Any document or writing signed by you that clearly conveys your wishes will help eliminate disputes as to who is to receive the tangible personal property.
It is important that thoughtful consideration be given to the disposition of property before drafting a last will and/or trust. This is especially the case where one owns valuable tangible personal property and/or property that is of sentimental value such as a family heirloom. Documenting one’s wishes or that a gift was made will help avoid family disputes.
Anthony J. Enea is a member of Enea, Scanlan and Sirignano, LLP of White Plains. He focuses his practice on wills, trusts and estates and elder law. He is the past chair of Elder Law and Special Needs Section of the New York State Bar Association. He is the current chair of the Senior Lawyer Section of the NYSBA. He is the past president and founding member of the New York Chapter of the National Academy of Elder Law Attorneys. Mr. Enea is the president of the Westchester County Bar Foundation and a past president of the Westchester County Bar Association. He can be reached at 914-948-1500 or at email@example.com.