With the COVID-19 Pandemic, people turned to Do It Yourself (DIY) Last Will and Testament Forms. Too often people assume that a Last Will and Testament is a document to download from the Internet and fill in the blanks. Writing your own Will often leads to misinterpretations and problems. A last will and testament gone wrong cannot be undone or fixed at death. Often a person's intent is not followed because of how he or she wrote their own Last Will and Testament. Let's look at two issues involving personal property that occurred from separate DIY Wills.
What is Personal Property?
Personal Property includes family heirlooms such as silverware, pottery, and collectibles. Jewelry, furniture, and clothing are also considered personal property. There is a right way and many wrong ways to leave personal property.
What is a Personal Property Memorandum?
A testator/testatrix may reference in the will a separate writing State laws dictate the acceptance or rejection of a Personal Property Memorandum that directs the disposition of tangible personal property, including family heirlooms.
Requirements of a Personal Property Memorandum
To be valid under Missouri law (§ 474.333, RSMo.) a separate memorandum to dispose of personal property must meet the following:
- The list must be referenced in the will.
- Signed by the Testator/Testatrix in his/her handwriting.
- It may be written before or after a will.
Problems with the Personal Property Memorandum
Recently, a young woman came into the office distraught. Her mother's boyfriend refused to file the mother's Will as the Executor. In addition, he refused to give her son items left to him in a Personal Property Memorandum. The Court forced the boyfriend to file the Will. The Will was not Self-Proving. A separate memorandum listed the division of personal property.
In this case, the Testatrix signed and dated the Separate Memorandum. However, she did not reference the list in the Last Will. The heirlooms did not pass to the family. In her Last Will and Testament, she left all personal property to the boyfriend. The Mother's intent did not happen because of her flawed DIY Last Will and Testament.
Is Gifting a Problem?
What happens if there is a specific bequest? What happens if a gift is not written correctly? A client's family came in for a consultation with questions about their mother's Last Will and Testament. It seemed she had used some type of estate planning software to write her own Will and make changes one week before she unexpectedly died. In the will, the son is named Executor. In her papers he found a note outlining her intent.
Underneath his mother made a notation that he would receive the sums in the bank accounts. His mom received a lump sum annuity payment from his dad's retirement when he died. Immediately, she opened a Savings Account. His mother signed a bank card for her accounts authorizing a Payable on Death to her son. She signed a beneficiary deed giving the house to him, and a transfer on death for her car title. In effect, all her property was outside of probate, except personal property. In her final Will, she left a money gift and that gift caused a problem. Because she did not leave a Personal Property Memorandum or listed the personal property specifically as part of the inheritance, he had to open probate.
Intent Versus Reality
Although his mother intended for her personal property that consisted of many family heirlooms to go to her son, she failed to provide for it in her Will. To complicate matters, she left a small amount to 4 grandchildren and large sum of money to a new friend. The son showed a letter he received from another attorney.
“Be advised that in ______ state, the personal property inside the home does not follow the deed of the house. Therefore, the possible legatee could force the sale of property.”
John was confused. At first, a lawyer told hm that he owned everything. Then he was told he did not own everything. In truth, because his mother wrote a specific gift but had put all her other assets outside of probate, and did not address the personal property, John needed to sell items for fair market value. However, the law also governs what is paid first and then who is paid next and in order. Still, writing her own will without understanding legal issues and leaving a gift of money caused family heartache, and legal costs.
The Poorly Written Will
Of course, many problems arise when people write their own Last Will and Testament. In the cases above, the Testator/Testatrix intended for certain items to pass to their heirs-at-law, family members. Because of a poorly written DIY, their intent could not be followed. In fact, the poorly written will caused more legal fees, costs, and time that burdened each family on top of the emotional turmoil of grieving the loss of their loved one.
Your Estate Planning Attorney
Don't leave your estate plan up to chance. To make sure your document spells out exactly what you want it to say and do, contact me for a complimentary consultation. It's also important to protect your legacy plan against potential predators. Call me at 314-332-0011 or Book now for your complimentary consultation.