How does a Personal Property Memorandum work?

A Personal Property Memorandum is a separate writing in either your own hand or one typed and signed by the testator and two disinterested witnesses that addresses distribution of various items of tangible personal property and names the recipient of the gift upon the testator’s death.  The document must exist at the time of the testator’s death, but can be written before or after the creation of a will.  By referencing in a last will and testament the possible creation of a memorandum the testator or testatrix has added an incredible amount of flexibility to his or her estate plan and possibly can save him or herself some money in the future if a change needs to be made in the list of items to be distributed at time of death.  The memorandum is not valid without the existence of a will or a revocable living trust that serves as the center of your estate plan.

These kinds of memorandums can address what we collectively call personal property, namely jewelry, art work, clothing, furniture, antiques, tools and household items.  To be effective the description of the item needs to be specific, likewise the beneficiary needs to be clear.  In SC a memorandum cannot gift cash, bank accounts, securities, land, copyrights, life insurance proceeds, or business property.  Generally vehicles with titles are also not conveyed in a memorandum.

Personal Property Memorandums can help balance family dynamics where say a will says divide into two equal shares, and the son and his wife are aggressive in claiming for themselves the bulk of the household goods and the daughter is timid and drove some distance for the funeral ends up with only the china.  Mom would have wanted her daughter to have most of the jewelry and a cedar chest, and … Mom wishes would have been better stated if she had used a personal property memorandum listing the things she specifically wanted her daughter to have.

If you make several memorandums over your lifetime, the most recent one governs, if it’s found in time.  Language in a will specifies the time for locating the Personal Property Memorandum.  For this reason it’s a good idea to keep the most recent Memorandum with your will and provide a copy to your attorney, then destroy the old one.  Making a new memorandum does not alter the terms of your will.

 

Disclaimer:  Information contained in this column is meant to be of general information on frequently asked disability, elder law, estate planning and probate law, not specific legal advice to a client.  No attorney-client is created by reading this column.

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