By Elizabeth A. Caruso, Esq.
Myth or Fact? I can gift specific assets in my will to specific people.
This is a Fact!
Gifting is always a hot topic of conversation around the holidays, but few people consider the gifting of assets that they already own. By assets already owned, I am referring to tangible personal assets – cars, art, jewelry, family heirlooms, etc. These are assets that can be gifted during life or after death through your will or trust.
If you have very specific ideas as to how you want tangible assets to be distributed, you have two options when incorporating these gifts into your will. They can either be specifically listed in your will or they can be referenced by an outside written memorandum that your personal representative is obligated to follow. In most circumstances, unless I know that there will be conflict over an item, I suggest going the memorandum route. This way, if you change your mind about the distribution of an item, you can amend the memorandum yourself, as opposed to going back to your attorney for a new will or a codicil (amendment to a will). If you have a trust and you completed an assignment of your personal property to your trust, then you can accomplish the same thing with specific language or a memorandum.
The creation of these specific memoranda does not need to be fancy. It can be a written list, either in your own handwriting or typed out, containing a specific description of the asset and the name of the person to receive the asset. I always recommend that my clients date and sign the list so that if there are changes made to the list, the most recent list can be recognized. I then recommend that client keep that list with their other estate planning documents for easy location should something happen.
It may seem tedious to list out specific items, but specificity and clarity can eliminate questions and conflict after you pass away. Often items gifted in this manner are sentimental in value and the transfer of these items can be emotionally charged. Putting one family member in charge of the distribution can be problematic because, without a written instruction, that family member is left guessing how you wanted assets distributed or defending an oral conversation that has no proof. Incorporating these gifts into a simple memorandum can make this process much easier for everyone.
An elder law attorney can review your specific situation, including if your will or trust allows for you to create a specific memorandum gifting tangible assets.
About the Author: Elizabeth A. Caruso, Esq. is an attorney at Legacy Legal Planning, LLC, in Norwell. She has been practicing estate planning, probate, and elder law on the South Shore for more than a decade. If this article has sparked questions for you, please feel free to reach out via phone 781-971-5900 or email elizabeth@legacylegalplanning.com to schedule a time to discuss your unique situation.
