WHO GETS GRANDMA’S CHINA? Planning for Tangible Property - By Sandra L. Clapp
Updated: Jul 16, 2020
It is not uncommon for tangible property to be ignored or forgotten in planning the disposition of the estate. Idaho law authorizes the use of a “written statement or list” to dispose of tangible personal property. The list cannot be used to dispose of “money, evidences of indebtedness, documents of title, and securities, and property used in trade or business.” The written list can be in existence at the time the will is prepared, be prepared later, be altered, and have no independent significance from distributing tangible property. The written list must be in the handwriting of the individual or be signed by the person preparing the list. The list must describe the item with “reasonable certainty.” Although the written statement does not need to be notarized or witnessed, such additional steps would assist with enforceability if dispute arose regarding the validity of the document.
This provision of Idaho law has not been interpreted in many cases so will remain subject to development. Although tangible property may seem minor, it is an area that encourages dispute because of the unique nature of the assets being distributed. Items of historical or family significance often cannot be replicated and may be priceless to the members of the family even though the value is actually minimal. Common items that cause family discord include war memorabilia, photographs, art, genealogical records, heirloom jewelry, and pieces of furniture. Some items of tangible property cannot be physically divided (or the family may not agree to such division).
To help avoid disputes regarding tangible property, the following are some considerations to implement during the planning process:
Develop a written list – Preparing a list for special items or outlining your desires goes a long way in minimizing dispute.
Keep the list with your will – Often the list is something being developed in various notebooks or scratch pads. These documents may give an indication of desire, but may not be enforceable. Keep the “final” list with your testamentary documents and make clear in any future written lists whether it replaces the prior list or is a supplement to the prior list.
Consider taking digital photographs – Although this method is uncertain, if the photographs are in the form of a continuous list and signed by the owner with an expression of distribution, a court may be able to easily identify items of property and the intended recipient.
Consider the needs of a surviving spouse – Clarify if the item should be distributed only upon death of both spouses. The risk could be the surviving spouse disposes of the item before it reaches the intended recipient. The children may strip the home of all tangible property and leave the spouse without furnishings. Legal ownership must be weighed against intent.
Copy photographs or documents now – With current technology, photographs and documents can be readily scanned or copied and shared with multiple family members before death.
Minimize the number of persons who inherit – For those items not on the written list, clarify who will inherit these items. It may be preferable to keep this list to spouse or children rather than more remote generations to simplify the distribution process.
Clarify expenses – Identify who is responsible for the cost of appraisals or transport of items.
This article is not intended to replace legal advice applicable to your situation and should be used only for informational purposes. For more information Ms. Clapp may be reached at 208-938-2660.