In its most literal form, “personal property” is usually understood as all property that doesn’t involve actual land or land usage. Most courts will vary the meaning of “personal property,” by trying to gauge the intentions of the testator (i.e. the will’s creator).
When preparing your will, one of the things that you will consider is how your personal property such as collectibles, jewelry, antiques, cars, or art work will be distributed. In distributing your separate property, you will need to include a separate writing called "Memorandum of Tangible Personal Property".
How Do Courts Determine the Intentions of the Testator?
Courts often first look into the will itself, reading certain parts to see if they conflict with the literal meaning of “personal property.” In most cases, courts will follow what the will says, even if it means excluding certain items that are generally considered “personal property.”
For example, suppose a will gives all “personal property” to the testator’s brother, yet gives a prize winning horse to the testator’s uncle. Even though one’s horse falls within the literal meaning of “personal property,” a court will likely honor what the will says and give the horse to the uncle. The aim of this is to carry out the will the way the testator intended, by avoiding technicalities based on abstract legal terms.
Another method of determining the intentions of the testator is to look at surrounding circumstances. For example, suppose a will gives the testator’s sister all his “personal property.” However, suppose the testator left his car with his cousin, who has kept and maintained the car for the past 15 years. In this instance, a court may be willing to keep the car with the cousin, arguing that it best keeps with the testator’s wishes.
What If “Personal Property” Is Accompanied by Other Words or Terms?
Since “personal property” is so broad, courts generally use the other words or terms to limit its meaning. An obvious example would be use of the term, “personal property located in my house,” which a court would limit to items inside the house. Another example is, “tangible personal property,” which a court would limit to actual physical property.
What Are Some Examples of Things Included as “Personal Property”?
As stated above, “personal property” at its broadest usually means anything besides actual land and stakes in land. In many cases, courts have gone a step further, limiting the term to tangible property. Even still, some courts limit the term to tangible property designated only for personal use.
Some of the more problematic items that either can or cannot be considered “personal property”, based on each case, include:
- Money (e.g. cash, bank accounts, traveler’s checks, certificates of deposit, etc.)
- Stocks, bonds, and securities
- Insurance trust certificates
- Real Estate (in very rare cases based on the circumstances)
What Is a Memorandum of Personal Property?
When preparing your will you will use a separate document called "memorandum of Personal Property" to distribute property such as collectibles, jewelry, antiques, cars, or art. The advantages of using this memorandum is that you can change who and what is on the lost without worrying about creating a whole new will and going through all the formalities required.
How Else Can I Distribute My Personal Property?
Another way you can have your personal property distributed and have them pass to your beneficiaries in event of your death is through the use of a trust. This involves you making a trust and then executing a bill of sale which states that all of your personal property is owned by you during your lifetime as a trustee and upon your death, the terms of the trust control and whatever you own at that time would pass to the beneficiaries named in your trust.
How Can a Lawyer Help Me?
Due to the heavy use of abstract legal terms and susceptibility to varying interpretations, creating a will can be a very tough and frustrating process. If you are considering creating a will, you should contact an attorney who specializes in estate planning. An estate planning lawyer can only not only guide you through the will creation process, but also ensure that each piece of your property gets distributed as intended.