When viewing an estate as a whole, Tangible Personal Property (“TPP”) is not usually the most financially significant component. However, it is often the single most bitterly disputed area in an estate.
Often times, when TPP is being administered under an estate, there are specific provisions in the will as to how the estate should be distributed, but nothing directly addressing specific items of TPP, such as the china collection or Mom’s recipe box. If one spouse dies first, then under C.R.S. § 15-11-805, there is a general presumption that all TPP in the joint possession or control of spouses is held in a joint tenancy with right of survivorship. (“[T]angible personal property in the joint possession or control of the decedent and his or her surviving spouse at the time of the decedent’s death is presumed to be owned by the decedent and the decedent’s spouse in joint tenancy with right of survivorship if ownership is not otherwise evidenced by a certificate of title, bill of sale, or other writing.”). This means that if you are married when you die, then your TPP will go to your spouse, who will then own the TPP outright and be able to dispose of it as they see fit.
These default provisions leave a lot of room for the heirs to squabble as to who was promised what, or potentially a surviving spouse to alter the intended destination of certain items. However, there is another way! Under C.R.S. § 15-11-513, “a will may refer to a written statement or list to dispose of items of tangible personal property not otherwise specifically disposed of by the will.” This is confirmed under § 15-11-805, which specifically excepts TPP from the fate of joint tenancy with right of survivorship if ownership is otherwise evidenced by some “other writing.” Enter, the TPP Memo.
The Tangible Personal Property Memo is an important tool in every estate planner’s basket. By having your clients consider specific bequests of TPP before they die, you can avoid a lot of disputes on the back end when the estate is being administered. The TPP Memo also provides the heirs with the comfort of having something concrete to point to regarding the decedent’s wishes, which can extinguish disputes over the decedent’s intentions before they risk engulfing the entire estate in flames.