Who Gets the Rolex?

A few years before she died, my Nana started sending me things from her home in Kalamazoo, Michigan. I had a few reactions: one, “I’ve always loved this jewelry box/necklace/__ . . . how sweet” and two, “this is really depressing.” It’s pretty common for elderly folks to start divesting their personal property in anticipation of death. It’s also pretty common for elderly folks to tell their kids what they want to make sure they get or, alternatively, putting a post-it note on things. In fact, most of the people I meet with who are over 80 years old, already have a grand scheme of who is getting what and they always assure me: “my kids know who is getting what – I’ve told them.”

Wrong. Kids rarely ever totally understand who is getting what. In fact, I have been paid too much money over the years helping kids figure out how to best distribute mom or dad’s stuff. Legally, “stuff” is called “personal property” and is one of the biggest worries in my practice because the stuff in dispute rarely has the requisite monetary value to justify the lawyer fees to fight about them (e.g., grandma’s cooking book or mom’s print of the Eiffel Tower by a random guy in Paris or original family photographs) but the sentimental value is incredibly high. How do you quantify sentimental connections? To the highest bidder, unfortunately, which leads to a lot of family battles.

To the extent that a family can just figure out it, that is great. In fact, I tell my probate clients: “Try to figure it out before involving me” so that we don’t have to get very formal about the process (i.e., valuing each item of personal property, making sure everyone gets an equal share of all the stuff [including dad’s Hawaiian shirts], signing agreements, etc.). The problem is that a lot of the time we’re just guessing about what the kids want and this all could have been a lot easier if mom/grandma just wrote down what she wanted each of the kids to have.

Fortunately, there is a fabulous option available to Washington residents to assist with this process. If you have a Will, it should reference a list separate from your Will that you may use to distribute personal property. While a Will is a very formal document and should be prepared by a lawyer, this list is very informal and can be on the back of a napkin, as long as it is signed and dated by you. On the list, you can direct who gets certain items of personal property. These items are typically given in addition to any other inheritance under your Will, so the items are not valued. An example list would look like this:

It can be as long as you like – I’ve seen lists that are 10+ pages long and they’re fantastic because the guessing is out of the equation and everyone knows where things belong. I find that lists are particularly helpful when distributing items like jewelry, guns, antiques, and artwork.

Divesting of personal property while you’re alive, in anticipation of death, works well from a legal perspective but it is a bit morbid. Post-its or notes on the bottom of items are not a legally enforceable way to distribute your stuff when you die and could create problems. So . . . if you know you want personal property to go to a certain person when you die, create a Will that references a separate list, which outlines all of those specific items and the intended beneficiary. Keep the list with your Will so that the executor can find it. Easy peasy!