A common question we hear from estate planning clients is how do they best dispose of their tangible personal property at their death? How can they make sure that great-grandma's handmade quilt goes to Susie, or that grandpa's pickup truck goes to Jack?
Over the years, many methods have been employed, to varying degrees of success. We've heard of folks keeping journals describing what they want to happen to each piece of furniture or artwork, or using masking tape to mark odds and ends throughout the house with the name of its intended recipient. Still others have told us that their family members orally told everyone what is to happen with this or that possession when they die.
While these methods and others have been effective for many, the problem is that they are not legally binding—they rely on the honor system to ensure that personal property is distributed according to one's wishes. While there may be moral reasons to respect the wishes of the deceased, without listing each piece of property and its intended beneficiary in the Will (or Trust), there is no legal obligation on the part of the family to abide by the journal, the masking tape, or what they were told.
Unfortunately, we've seen these methods go terribly wrong and cause rifts within families. If the family—or perhaps just one person—decides not to honor the deceased's wishes, the system grinds to a halt. This often leaves those who want the deceased's wishes to be honored with no recourse, as the wishes cannot be enforced if they are not specified in the Will.
The good news is that this is no longer the case.
Effective January 1, 2021, Georgia has adopted a new law to provide more flexibility and ease in distributing tangible personal property, not including monetary gifts or real estate, after death. As codified in O.C.G.A. 53-4-5, a person can now leave a personal property memo or other writing to distribute pieces after their death, subject to certain requirements. Specifically…
- The person's Will must refer to a possible personal property memo or other document.
- The memo or writing must be signed and dated by the testator.
- It must describe each piece of personal property and the intended beneficiary with “reasonable certainty.”
Under this new law, a person's personal property distribution wishes are legally binding (provided they follow the requirements) and can be enforced should someone attempt to disregard them. This protects both the deceased's wishes and beneficiaries in the event that someone tries to take property that is not intended for them. Another real benefit to this new statute is that a person can prepare this memo later, after he or she signs their Will, and can update it from time to time without having to redo the Will itself.
In the past, sometimes two or more people were given conflicting instructions from the deceased regarding a piece of property, resulting in a dispute that could not be easily settled. Under the new law, if two or more writings contradict each other, the most recent writing signed and dated by the testator would revoke the inconsistent provisions of earlier versions.
This new law provides us with some flexibility and enforceability in using written memos, created after the Will, to distribute pieces of personal property. However, if there is a piece of personal property that has great monetary or sentimental value that you absolutely want to ensure goes to a particular person, it may be wise to either give that item to your beneficiary before you die, or specifically list it in the Will itself.
If you're ready to plan your estate, or if you have a Will but do not have a personal property memo, call Peach State Wills and Trusts at (678) 344-5342. For more info on estate planning in Georgia, click here to request our free guide to estate planning. You'll also find other videos and blog articles here and on our YouTube channel.
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