The Estate Planning & Probate Litigation Blog

The Use of a Separate Writing for the Disposition of Tangible Personal Property

If you have a Will (and you should!), part of your Will gives away your tangible personal property, your stuff, as George Carlin would call it. Tangible personal property is all your household goods, furniture, furnishings, clothing, boats, automobiles, books, art, jewelry, club memberships and articles of personal adornment or household use. It is anything that is not real property, like your house, and not intangible property, like stocks or bank accounts. It is your grandmother’s silver tea service, your favorite set of golf clubs, and all that other stuff you love, and which may become the stuff of heated family discussions after you are gone. Who gets it? You can and should decide now. After all, it’s your stuff.

In your Will, you can give all your tangible personal property to one person or another, or you can give particular items to particular people. The problem is that if you change your mind about an item or a person after you sign your Will, you have to either completely re-do your Will or prepare a special amendment to your Will called a “codicil.” Both alternatives require not only the input of an attorney but also the presence of two witnesses and a notary public.

Fortunately, several states, such as Florida and South Carolina, offer a simple solution for your stuff. According to Florida Statute 732.515 and South Carolina Probate Code Section 62-2-512, you may dispose of any item of tangible personal property by a memo prepared by you, separate from your Will. The memo can be done without witnesses or notarization. And you can change it as often as you like, without changing your Will.

For the memo to be valid, your Will must refer to it and may provide that the most recent version of the memo supersedes any prior version. The memo must describe each item and the identity of its recipient with reasonable certainty and you must sign and date the memo or, alternatively, in SC, the memo must be in your handwriting. If you revise the memo or prepare a new one, it is important to sign and date it (or, in SC, make sure the revised memo is in your handwriting).

There are limitations on the types of tangible personal property you can list in the memo. It cannot be used to dispose of property used in your trade or business, cash money or books, paper, or documents whose chief value is evidence of intangible property rights, such as bank books, stock certificates, promissory notes, insurance policies, and items like that. In Florida, the memo should also not be used to give away a coin collection, because the law governing that is not yet settled.

Finally, you should treat the memo as though it is your Will. It should be kept with your Will because the assets listed in the memo will be administered as though actually set forth in your Will. If your Will is in your attorney’s vault, send the original memo to your attorney for safekeeping in the attorney’s vault and keep a copy of the memo with the copy of your Will.

For those who have a revocable trust, there is currently no statute in Florida or South Carolina concerning separate writings for tangible personal property applicable to revocable trusts. So, a reference to a memo in your trust may not work. A better move is to have such a reference in your Will.

The disposition of tangible personal property is often an afterthought. It shouldn’t be. A close, loving family can be torn apart by arguments over family heirlooms, even those of little monetary value. Talk to your loved ones now about which items of yours they want, and then prepare a separate writing for the disposition of your tangible personal property. Do a memo for your stuff.