Florida Elder Law & Estate Planning Blog
How Floridians Can Pass Tangible Personal Property to Loved Ones
September 29, 2020
For most people, the ultimate goal of estate planning is to promote family harmony. If your family members get along well, you want your plan to encourage more of the same. If they don’t, you want to avoid adding more friction. How and to whom you pass your assets figures greatly in keeping the peace. And while certain assets like financial accounts are readily divided, that’s not the case for personal items, regardless of their monetary value. Dividing those assets may be impossible. Selling them may be impractical. After all, you wouldn’t chop an heirloom necklace in thirds to distribute to your three daughters. You’re not about to tear in two that prized old baseball card. How should you deal with those kinds of assets?
Tangible Personal Property: Definition
These types of items are tangible personal property. They are physical objects such as jewelry, keepsakes, collectibles, decorations, art. Most do not have an official, titled owner. They are neither real property nor intangibles like, say, stocks. Regardless of their monetary value, your loved ones may have very strong attachments to these items. Do not underestimate the emotional hold these items can exert! Many an estate administrator has been aghast to discover that before he can even lock up a deceased parent’s condo, a family member has entered and made off with a prized item he swears the decedent promised him.
One Solution: Give Items Away During Your Lifetime
One way to distribute your tangible personal property is to give it away during your lifetime. If you are so inclined, there are benefits to doing this. First, you can talk first-hand with family members to determine what items they truly want or don’t want. If there is competition for an item, you can decide who gets it and explain your decision, which may help defuse any conflict. Giving items away during your lifetime can also be a good start to downsizing, decluttering and organizing, making the task easier for whomever administers your estate after you are gone. Lastly, you can derive satisfaction from seeing loved ones enjoy the items.
Can I Distribute My Tangible Personal Property Through My Will?
But let’s say you are not inclined to give away personal items in advance. Some people handle this by putting in their Will a blanket statement to the effect that, All my tangible personal property will go to Beneficiary X, trusting that the beneficiary will either keep the items, or figure out how to distribute them. If your tangible personal property is not particularly valuable – pots and pans and some furniture, say – this may be a good solution. But like everything in an estate plan, it is generally better to spell out your intentions with great clarify and specificity. That is why we usually recommend that our clients create a Tangible Personal Property List in order to pass on their personal items.
The Tangible Personal Property List
A Tangible Personal Property List is simply a list of personal items and your instructions for who gets them. You can discuss the list with your loved ones, just as you would if you were giving away the items prior to your passing. It is a separate writing permitted under Florida Statute 732.515, which says:
A written statement or list referred to in the decedent’s will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.
The Tangible Personal Property list is NOT actually included in your Will. However, your Will must reference the existence of the list. Without the inclusion of that language in your Will, the list lacks legal teeth. The property included on it may not be distributed as you wish.
The list must be signed and dated to be valid. It need not be notarized. Some lawyers provide a pre-printed form for you to complete, but you do not need any particular form. It can include as many pages and as many items as you see fit. It should be kept in a safe place with your other estate planning documents. You can share the list with your loved ones if you wish.
By the way, if you are wondering if you can include a reference to your Tangible Personal Property List in your Living Trust, the answer is no. Under Florida law, your list can be incorporated by reference in a Last Will and Testament only.
Be Very Specific
As the statute indicates, your Tangible Personal Property list must be highly specific and precise. A reference to “my gold earrings” will cause confusion if you have several pair. Did you mean all of them? All the ones that are gold-colored – or just the ones that are 14K gold? The more detail, the better. Some people take photos of the items and include them with the list for further clarification.
You must also be specific about the recipient of the item. If you have two nephews named Bill, which one are you referring to? Also, you must indicate who gets the item if the intended beneficiary predeceases you. If Bill is not alive when you pass on, who gets the item you intended for him? His children? If he has more than one child, which one? Or do you want it to go to another beneficiary altogether? In estate planning, the devil is always in the details.
The List Can Be Changed At Any Time
Unlike a Will that must be changed via codicil, or a Trust that must be changed via trust amendment, you can revise your Tangible Personal Property list at any time, with minimal fuss and without incurring attorney’s fees. Just write up a new list if you change your mind about who gets what, or if you’ve otherwise disposed of an item. Make sure to sign and date the new list, and again, be very specific. If you have a pre-existing list, destroy it.
What NOT To Put On The List
As you prepare your Tangible Personal Property list, remain mindful of the definition of tangible personal property. Include only that type of item. Investments, financial accounts, and real property do not belong on the list and will not be passed in the manner you wish if you include them.
Will Probate Be Necessary?
For many clients who want their estates to pass to beneficiaries without the hassle of probate, we create a Revocable (Living) Trust. We also prepare a Pourover Will for them. The Pourover Will is a safeguard, ensuring that any asset accidentally left out of the trust “pours over” into the trust at death. So at this point you are probably wondering: If I have a Tangible Personal Property List referenced in my Will, won’t the items on the list have to go through probate?
The answer is, most likely not. When our office handles an estate, we provide a copy of both the Will and the Tangible Personal Property List to beneficiaries. In our many years of experience, without exception, beneficiaries have agreed to respect the provisions of the list. We have never had a single instance in which we had to submit the Pourover Will and Tangible Personal Property List to probate. Yes, there have been situations in which a beneficiary is not happy with the tangible personal property he/she received or didn’t receive from the decedent. But in each instance the beneficiary has chosen to accept the status quo, in order to keep the estate out of probate and avoid the delays and fees probate would otherwise involve.
If a situation arises in which one of your beneficiaries opts to challenge the dispositions of the Tangible Personal Property list, your Tangible Personal Property List and your Will would be submitted for probate. The disgruntled beneficiary could then challenge its provisions and the probate judge would make the decision.
New Law Includes Precious Metals as Tangible Personal Property
Precious metals are objects such as gold coins whose face value may be different from their actual value. For example, a rare old coin may say $1 on its face; it may be worth the market value of gold when melted down; but the demand from collectors may mean it is worth many more times either of those amounts. Until now, there has been a lack of clarity about whether these items should be considered Tangible Personal Property. A new Florida law resolves the issue: they are. The new law (Florida Probate Code Section 731.1065) states that “precious metals in any tangible form, such as bullion or coins, kept and acquired for their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment” are considered Tangible Personal Property. The law became effective July 1, 2020. Therefore, if you have items like this in your estate, they, too, should go on your Tangible Personal Property List.