Parents, grandparents and loved ones often make promises and/or express their desire to leave specific items of tangible personal property (furniture, artworks, jewelry, clothing, cars, watches, etc.) to a child, grandchild, loved one or friend in their Last Will and Testament. Whether or not that promise will actually be fulfilled depends on a variety of factors such as whether the item is in existence and owned by the decedent at the time of death, whether or not the item was taken by another or given to another person during the decedent’s life and sadly, who is first to enter the home after the decedent passes away.
Fortunately, there are a number of practical steps that one can take to ensure that specific items of tangible personal property actually end up in the hands of the person he or she wants to receive them:
1. One Should consider giving the specific item to the individual while one is alive and still mentally competent. A client of mine once stated that “a warm gift is much more enjoyable than a cold one.” While this option may be difficult if the individual still uses or wears the specific item, gifting property during your life can ensure that your wishes are carried out. For instance, a client recently expressed to me her desire to leave a specific item of jewelry to her granddaughter. However, her home and contents therein were specifically devised to her son in her Last Will and Testament. I suggested that in order to ensure her wish would be fulfilled that she should gift piece of jewelry to her granddaughter while she was alive and in good health. Her response was “well, I haven’t worn the piece in over 20 years, and have just been holding onto it to give to my granddaughter when I pass away.” A situation like this may lend itself to lifetime gifting nicely.
2. Specifically identify and bequeath the item of tangible personal property in your Last Will and Testament or Trust agreement that owns your home and its contents.
For example, “I give and bequeath my 2-carat diamond engagement ring to my daughter, Elizabeth.” This will help not only identify the specific item and its recipient, but also segregates the item from other items of tangible property that one may be leaving to a larger group of individuals.
3. Consider utilizing a signed and dated letter or memorandum that outlines your wishes. While this document is not legally binding in the State of New York, it will help guide one’s Executors, Trustees and loved ones as to whom one would like to receive each item of tangible property after one passes away.
Taking these steps not only helps ensure that one’s wishes are fulfilled, but, also helps prevent family members from fighting over who gets specific items of property. I have unfortunately seen family members spend thousands in legal fees disputing who gets dad’s motorcycle or mom’s silver, or even less monetarily valuable items that hold sentimental value such as a photo album or bird feeder. As such, it is important that thoughtful consideration be given to the disposition of tangible personal property before drafting a Last Will and/or Trust, or making promises to specific individuals.
Lauren C. Enea, Esq. is an Associate at Enea, Scanlan & Sirgnano, LLP. She concentrates her practice on Wills, Trusts and Estates, Medicaid Planning, Special Needs Planning and Probate/Estate Administration. She graduated from Pace University School of Law Summa Cum Laude and is admitted to practice law in New York and Florida. Ms. Enea is the Sponsorship Chair of the Elder Law and Special Needs Section Sponsorship Committee of the New York State Bar Association (NYSBA), the Co-Chair of the NYSBA Elder Law and Special Needs Section 2020 Fall Meeting and the Publications Committee Production Editor for the NYSBA Elder Law and Special Needs Section Journal. She can be reached at (914) 948-1500 or at L.Enea@esslawfirm.com. Please visit www.esslawfirm.com for more information.