Memorandum for Tangible Property

Some states allow you to list tangible property and the beneficiary of that property on a page separate from your will, frequently called a “memorandum.” The will and memorandum should cross-reference each other (some states require the cross-reference), but this method is an easier way to direct tangible property. A will memorandum can be as simple as that shown below.

This ______ day of ___________, 20__, pursuant to Article _____ of my Last Will and Testament dated _______, which provides that I may effectively dispose of my tangible property in accordance with the most recently dated memorandum which I have signed and left with my personal papers, I have executed this Memorandum.

I bequeath absolutely the below-listed items of my tangible personal property as follows:

The benefit of a memorandum is that you can change your mind every day, if you wish, without having to rewrite your will or a codicil. Just remember to sign and date the latest memorandum and destroy all previous ones.

Avoiding Conflict

If you think your children or heirs are going to fight about what each one receives, you can specifically describe each piece of tangible personal property and who should receive that property. Even in families in which heirs care deeply about one another, disagreements can arise about jewelry, crystal, china, furniture, cars, boats, and collectibles. It takes time and thought on your part to include specifics in your will or memorandum, but it can avoid hard feelings after you are gone.

Or you might consider putting a clause in your will that says, “If my children cannot agree on how to distribute the rest of my tangible personal property within six months after my death, I hereby instruct the executor to sell the disputed items and divide the proceeds equally among my children.” Such a clause might encourage them to cooperate!

Who Pays Expenses

You should include instructions about who pays the expenses incurred in storing, packing, or moving the tangible personal property. A will may state that these expenses are not to be charged against the devisee who receives the tangible personal property. In plain English, this means that if there are expenses in storing, packing, or moving any tangible personal property, those expenses are to be paid from other assets or property in your estate, and are not charged to the one who receives the property. If this is not your intention, you should instruct your executor that any expenses for storing, packing, or moving will be charged against the devisee who receives the property. For example, if one child lives 3,000 miles away, it may not be fair that the other heirs must bear the expense of packing and moving the property!

Specific Devises of Other Property

There is no magic number of how many articles there will be in your will. If you want to make specific devises of any other property, you should have another article titled “Specific Devises of Other Property.” You should number each paragraph. In each paragraph you should describe in detail each piece of property and who is going to receive that property. For instance:

  • I leave the property located at 7301 Chase Drive, Sarasota, Florida, to my daughter June.

  • I leave my brokerage account held at X Company to my son Scott.

  • I leave the balance of my savings account held at X Bank to my daughter Rebecca.

There are two points you should consider regarding specific devises. First, if you don't own the described property when you die, the devise is ignored, and the devisee does not get other property unless it is already specified. Second, you should specify what happens to the property if the devisee you name is not living. For example, if you leave to your daughter June the property at 7301 Chase Drive, that provision should continue and state that if June is not living, the property shall pass to her children, or to her brother or sister, or according to the residuary clause of your will. These are choices you need to make when you include specific devises in your will.

When you leave a specific devise of property to a named individual in your will, make sure that the property you are attempting to leave to the named person is actually titled in your individual name. The property could be very clearly described but, if the property is owned jointly with someone else, the will has no effect.

Per Stirpes

There are two legal terms you should understand. The first is per stirpes, and the second is per capita. Let's first take a look at per stirpes. Whenever you leave property to a person per stirpes, this has a very definite legal effect. It means that if the named person is dead, the property passes to the lineal descendants, by representation. The best way to understand this concept is with a diagram.

Per stirpes means that if Child 1 is deceased, Child 1's share will be divided equally between GC1 and GC2. In other words, Child 1's ⅓ share will be divided equally between GC1 and GC2, who will each receive 1/6 of the property. If you would rather have Child 1's property distributed to your other two children, Child 2 and Child 3, you don't want to use the term per stirpes.

Assume that all three of your children are gone. If you have left the property per stirpes, Child 1's children will each receive 1/6 (½ × ⅓); Child 2's child will receive ⅓ because Child 2 had only one child; and Child 3's children will each take 1/12 of the property (¼ × ⅓). This may not be what you intended. If your children are all gone, you might want each of the seven grandchildren to take equal shares and, in that case, you shouldn't use the term per stirpes.

Per Capita

Another option is to use the term per capita. If you leave the property to a group per capita, and a member of the group is gone, the property goes in equal shares to the remaining persons in the group.

For instance, if you leave your property per capita to your three children and one child dies, then the property will pass to your two living children, and not to the children of your deceased child.

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