Massachusetts law allows a Last Will and Testament to refer to a separate listing of tangible personal property with designated beneficiaries of such property. Previously, it was not uncommon for Wills to contain page after page of instructions relative to household furnishings, jewelry and other items of tangible personal property. As a result, if you wanted to change just one bequest, a codicil to your Will would be required with the formality (and cost) of executing it in the presence of two witnesses as well as a notary public. Now, instead of changing your entire Will you simply update the memorandum or listing whenever you want to make a change. Here are some tips in creating such a document:
- While formalities are relaxed, be certain to follow the requirements. The memorandum should be printed, signed and dated. Already we have had cases where the memorandum was simply a listing in a digital document found on the person’s computer and since it was never signed it was not enforceable.
- Integrate the memorandum with your Will. Your Will should instruct your Personal Representative to follow the instructions in the memorandum. The memorandum should be stored alongside your original Will so that your Personal Representative can locate it.
- Be specific. You may know exactly what you are describing in the Will, but would someone else know what you are referring to? Include model numbers of items and perhaps include digital photographs in the memorandum (especially helpful when describing particular items of jewelry).
- Don’t describe things by where they are located in your home: A bequest of “all the furniture in the living room to my daughter” isn’t specific enough. Plus if you move, or if items in the house are moved around after your death this generic description could prove inadequate.
- While these memorandums are helpful, lifetime gifts should still be considered. When you think about how your assets are divided after your death – bank accounts, investment, real estate – these are all relatively easy to divide into equal shares for your beneficiaries. A household of furnishings and personal belongings can not only be difficult to divide equally, but can also cause conflict among beneficiaries. Items of significant sentimental value that cannot be divided should still be candidates for lifetime giving. In addition, when you give these items away during life you can tell the beneficiary the story and history of the item at the same time.
- While this can be an enormous task, even a partial list can reduce conflict. When you think about all the items in your house that have meaning and should be designated to go to certain people it may seem like a daunting task to capture such listing in writing. The ease in which this memorandum can be updated means that you can tackle just a piece of this task at a time, print, sign, date, and know that you can update the memorandum when you have time. We have seen partially completed lists that were never signed, probably because the person didn’t consider it done, and if they had simply signed and dated it at least a portion of the property division would have been simplified.
- Don’t assume that “they’ll figure it out.” Beneficiaries place different values on items and the division of property in someone’s house after they pass away can get contentious. Twice in my career we have had Personal Representatives hire constables to be at the property on the day of division to ensure a peaceful division of property. Every time you can replace an argument over who should get what with a “mom and dad said I get this and you get that” it will help ensure the division of your property doesn’t negatively impact the relationship between beneficiaries after you pass away.
When complete, have your attorney review the memorandum. Attorneys are trained to spot ambiguities and vague wording and a quick review of your memorandum might help spot areas where you need to be more specific.