HOW TO EASILY DISPOSE OF YOUR PERSONAL EFFECTS AT YOUR DEATH
Before South Carolina’s adoption of the Uniform Probate Code in 1987, if someone wanted to leave various items of tangible personal property to different family members or friends, they had to include specific bequests in their Will setting forth the particular item that they wanted to leave and who was to receive the item. Back then it was not unusual for a Will to go on for several pages listing all sorts of china, crystal, jewelry, dishes, antiques, furniture, books, guns, and every other imaginable type of personal property one could own, separately identifying each item and who the lucky recipient was of such item.
The problem, though, was when grandma got mad at anyone who was to receive a family heirloom and decided that person no longer deserved her wedding china or the antique rocker grandpa gave her for their fifth wedding anniversary. In order to give this item to someone else much more appreciative who would really take care of it, she would have to call her lawyer who, back then, did not have access to today’s modern technology wonder, the computer, and have a whole new Will typed up by the lawyer's secretary just to make sure that her treasured china would end up on someone’s dining room table rather than at the flea market.
Some people change their mind about such things as often as the seasons change, and each change required a visit to the lawyer's office, who by now you’re on first name basis with because you’re putting his kids through college because of all the changes to your Will. Well, thank goodness those days are over and it is no longer necessary to change your Will every time you change your mind about who you want to leave your most treasured possessions.
Under the South Carolina Probate Code, you can prepare a Will that refers to a written statement or list that is not within your Will and use this written statement or list to dispose of your tangible personal property. Such statement or list is a separate writing that identifies specific items of tangible personal property and sets forth who is to receive such items at your death. The writing must either be in your own handwriting or signed by you. It should be dated but it does not need to be witnessed or notarized. And, of course, it should describe the particular item and who is to receive the item so that there is no confusion or doubt about what the item is and who is to receive it.
The great thing about this provision of the Probate Code is that the statement or list can be changed whenever you change your mind and you don’t have to change your Will because the list or statement is not set forth in your Last Will and Testament. What is set forth in your Will is a reference to this separate list or statement that has been or will be prepared by you at some point indicating the items and who you want to receive them. Without this reference in your Will (or without a Will at all), such a list or statement of personal property would not be effective to dispose of your property at your death and has no legally, binding effect. So don’t try to make a list and not have a Will; it won’t work without a Will that refers to your list.
You can prepare your list yourself or your lawyer can prepare it for you. You can change it whenever you want. You can have your Will prepared this year and not prepare your list of personal property until next year. Whatever list is in existence at the time or your death will be given effect. That means if you have one list and prepare a new one, you should destroy the old list so there’s no confusion. Destroying the old list also eliminates hurt feelings when the granddaughter who finished college gets your engagement ring and the one who quit school and eloped gets your costume jewelry.
The list, often referred to as a memorandum of personal property, cannot be used to dispose of money, promissory notes, stocks, securities, bonds, specific documents of title used in the course of business, or property used in a trade or business. It can, however, be used to dispose of automobiles, boats, and other vehicles. It can divvy up your furniture, your antiques, your jewelry, your firearms and your collection of stamps, coins, Hummel figurines or Longaberger baskets.
The memorandum of tangible personal property does not need to be affixed to your Will but probably should be kept with the Will or at least in a safe place where it can be easily located after your death. The worse thing that could happen would be to have a long list of all those cherished items of personal property that you have painstakingly chosen each relative and friend who you especially wanted to receive each particular item but your list is not be found until years after your death and the biggest estate auction your neighborhood has ever seen simply because your family couldn’t agree how to divvy it all up. So, when you prepare your memorandum of tangible personal property to accompany your Will, keep it safe, keep it current and keep it where it’ll be found after you’re gone.
(The information provided in this article is for informational purposes only and is of a general nature. The information should not be construed as legal advice. If you have any questions about the subject matter of this article or related matters, you should consult with a professional advisor for advice. Deirdre W. Edmonds previously served for twelve years as Horry County Probate Judge and is currently the owner of The Law Office of Deirdre W. Edmonds, PA, located at 1500 Highway 17 North, The Courtyard, Suite 213, Surfside Beach, SC 29575. The Law Office of Deirdre W. Edmonds, PA focuses on estate planning, probate administration, probate and trust litigation, disability planning and elder law. Contact Deirdre W. Edmonds via Telephone: (843) 232-0654; Website: www.dedmondslaw.com; and Email: dedmonds@dedmondslaw.com.)