New York Estate Planning & Elder Law Blog
When you create an estate plan, you face many decisions. One of those decisions will be how you should divide and distribute your property. You will spend a great deal of time deciding who will get what upon your death. One area that may need special attention is the distribution of your tangible personal property, especially those items that may not have significant monetary value, but may hold substantial sentimental value to you and your loved ones.
What is tangible personal property?
Under New York law, property is anything that may be the subject of ownership. The property specifically devised by your will or trust commonly includes real property, cash, stocks, motor vehicles, and other items of value you wish to pass on to those named in your will or trust. It is a good idea to define what you mean to include as part of your tangible personal property, which typically excludes cash, securities, and tangible evidence of intangible property. Generally, tangible personal property will include property, other than real estate, whose value is derived from the item itself, or its uniqueness, such as furniture, decor, jewelry, coin collections, photos, and other personal items you use in daily life. While you may consider your pets as members of your family, the law classifies pets as tangible personal property.
Ways to distribute sentimental items you leave behind.
After you identify what tangible personal property is included within your estate, the next step is to determine the best way to effectuate your decision as to who receives the property. You should discuss the relationships and dynamics of those receiving property with your estate planning attorney who can help craft provisions to help avoid confusion or later disputes. After addressing any potential issues that may come up among those who are receiving the property, you should identify the manner in which your personal representative or trustee will distribute the estate property. Because your list of tangible personal property may be very lengthy, and subject to constant change until your death, one practical method is using a document separate from your will or trust that outlines your wishes.
Because New York law does not provide for incorporating such a document in your will or trust in a way that would be legally binding, one practical approach would be to empower your personal representative or trustee with the discretion of dividing up your tangible personal property in their sole discretion or under a separate memorandum of wishes you may provide during your lifetime. In using this option, you should be sure that you are very comfortable with your selection of your personal representative or trustee and their commitment to carrying out your wishes. Also, your will and/or trust must also include the necessary provision that empowers the person to distribute the property and what to do in certain situations you may not have expected at the time of creating your estate plan or memorandum of wishes.
Other Considerations.
Certain property may require additional considerations. For instance, tangible personal property that has significant value may be better suited for specific reference in your estate plan, especially if the property is to be divided. Also, while frequent flyer miles and other reward point programs may fall outside the traditional definition of tangible personal property, these programs sometimes carry significant value, and you should check with your program for details on how these benefits may be transferred upon your death. Lastly, if you have pets, consider a trust for your pet that includes funds for its care. Just as your tangible personal property is unique, so are the alternatives for ensuring your property is distributed and cared for after you pass on.