I am not sure how I would like to distribute my fine china and jewelry. Do I need to decide this at the time of drafting my will?
When it comes to estate planning, there are two types of property: real and tangible. Basically, anything that is not land and/or a structure falls within the tangible personal property category – including cash, accounts, assets, boats, cars, jewelry, furs and so on. Generally speaking, testators (those creating a will) are pretty set on how to transfer the family home or vacation property – and, if not, will direct the executor to liquidate the property and add it to the residuary estate.
However, when it comes to heirlooms and tangible items of great sentimental value, making the decision can be more difficult and may take more time. As well, a testator’s feelings may change over time, or the intended beneficiary might predecease the testator. Therefore, Michigan law allows for a document known as a Tangible Personal Property Memorandum (or a Memorandum of Wishes) to accompany the Last Will and Testament, which may be changed and amended over time according to the testator’s wishes.
Basics of a Memorandum of Wishes
A Memorandum of Wishes must be signed by the testator, and may be handwritten or typed. Under Section 700-2510 of the Michigan Compiled Laws “a writing in existence when a will is executed may be incorporated by reference if the language of the will manifests this intent and describes the writing sufficiently to permit its identification”.
With regard to the first requirement, an experienced estate planning attorney can help ensure that a Will is drafted to contain a section referring to a Memorandum of Wishes, which is quite simply accomplished by including a small section explaining that any accompanying Memorandum is to be upheld along with the Will.
Secondly, the Will must include language to assure the executor that the testator, in fact, intended to create the Memorandum of Wishes and that his or her tangible personal property should be divided based on the language of this document. Oftentimes, these two requirements are combined into one short Article contained in the Will, and a blank Memorandum will be included along with the estate plan for the testator to use as needed.
If you would like to discuss the specifics of a Memorandum of Wishes, or would like to review your current plan, please contact Auburn Hills, Rochester Hills and Troy estate planning attorney Andrew Byers: (248) 301-1511.