Beyond The Will

When someone passes away, their family members are often left responsible for handling the decedent’s property – both real and intangible. Many difficulties come with handling the decedent’s intangible property, such as bank accounts, retirement accounts, and life insurance policies. However, many families do not realize the intricacies of handling a loved one’s real and personal property, such as cars, clothing, jewelry, art collections, etc. This article will shed some light on the cleanout in the aftermath of losing a loved one.

Who Receives the Personal Property?

The natural first question many people ask when someone passes is: who receives their property? The answer can vary greatly depending on whether the individual has an estate plan. If the individual does not have an estate plan (such as a Will or Trust), the property passes according to the laws of the state they lived in, also known as “intestacy.” The intestacy laws vary slightly from state to state, but most states require that the individual’s spouse and children will receive their property. If the individual did not have a surviving spouse or children, the laws often dictate that their property would pass to their closest living relative as determined by a genealogical chart.

If the individual had an estate plan, such as a Last Will and Testament or a Trust, then their property will be distributed in accordance with their estate plan. Regarding personal property, many states allow a separate “written statement” to distribute specific items of personal property. The separate statement allows you to itemize a list of personal property to be distributed to specific individuals.

In Massachusetts, a written statement regarding personal property takes priority over any contradictory language in a Will. For example, if your Will leaves your diamond ring to your spouse, but your written statement leaves your diamond ring to your daughter, the diamond ring would be distributed to your daughter.

Separate written statements are helpful tools in estate planning because they can be easily changed without changing your Will. They do not need to be executed with the same formal requirements as Wills and Trusts (i.e., in front of a notary and/or witnesses).

Who is Responsible for My Personal Property Upon My Death?

Your Personal Representative oversees the administration of your estate, files probate documents and estate tax returns, pays off debts, and distributes your assets to your named beneficiaries. Generally, since the terms of your Will govern personal property, the Personal Representative of your estate is responsible for collecting and distributing your personal property upon your death. The Personal Representative will typically oversee the division of the personal property between the beneficiaries (for example, between children of the decedent) and will also be responsible for selling or donating any property the that the beneficiaries do not want to keep.

What Qualifies as “Personal Property”?

In general, personal property is essentially everything you would reasonably find in an individual’s home, plus vehicles, including cars, boats, motorcycles, etc. By definition, it means any property “not firmly attached to lang or buildings.” It does not include any cash, accounts, digital assets, or other intangible property.

Pets and livestock are also included in the definition of “personal property.” Please see my article regarding estate planning for our furry friends to read more! (Estate Planning for Your Furry Friends – Pet Trusts Explained – Burns & Levinson)

Logistics of Titled Property and Valuable Collections

For titled property, such as cars, boats, and other motorized vehicles, the Personal Representative may need to complete forms with the appropriate Registry of Motor Vehicles. The Personal Representative is also responsible for maintaining active insurance policies on any titled property.

For valuable collections, such as artwork, coins, jewelry, etc., the Personal Representative is responsible for safekeeping and storing the property correctly. Depending on the terms of the Will and whether an estate tax return is needed, the property may also need to be appraised before being distributed.

Some items of personal property, even though their economic value may be minimal, often hold significant sentimental and emotional value. You should strongly consider meeting with an estate planning attorney to ensure that your most treasured belongings pass to your family members according to your wishes.