By Attorney Isaiah M. Richie Schloemer Law Firm, S.C.
With Halloween fresh in our minds, I thought I would keep with the Spirit of the season (pun intended) by reimagining a classic Charles Dicken’s scene. As you may recall in Dicken’s “A Christmas Carol”, the Ghost of Christmas Yet to Come illustrates to Ebenezer Scrooge the possible future he has in front of him. At one point, Scrooge sees, among other visions, people picking through his old belongings in a pawn shop. Ultimately the Ghost reveals to Scrooge that no one cared about Scrooge’s death and that his belongings had been picked through by scavengers and pawned off.
Of course, we know how the story goes; Scrooge changes his miserly ways and presumably his bleak future. Yet perhaps the story doesn’t end there. Imagine, if you will, that the very next night Scrooge is visited by another cautionary ghost, the Ghost of Probate Yet to Come (his house, it seems, is haunted by many cautious specters). This Ghost could show Scrooge a very different future. In this vision, Scrooge could see his nephew Fred, his loyal employee Bob Cratchit, and other friends and family gathering after the heartfelt funeral to begin sorting through Scrooge’s belongings.
Suddenly an argument breaks out between Bob and Fred about who should get Scrooge’s golden pocket watch. Fred claims he should get it because he is Scrooge’s only blood relative. Bob claims that Scrooge told him he could have it one day at the office. The scene devolves into fighting and arguing. Fred punches Bob in the face while Tiny Tim hits Fred in the kneecap with his crutch before Scrooge is swept back to the present day where he wakes up in a cold sweat. In our new story, Scrooge rushes straight to his solicitor (that’s British for “attorney”) and prepares a new Will or Trust and clarifies who should be in charge of distributing his property and in what manner. Then he takes his pocket watch to the office and hands it to Bob Cratchit, who had always really admired the watch.
How Can You Make Sure Your Property Goes Where You Want?
If the Ghost of Probate Yet to Come were to visit you right now, what would your estate administration look like? Well, an ounce of prevention is worth a pound of the cure, as the saying goes. If you want to be sure that certain personal property goes where you want, it is much easier to plan for that while you are still living. There are a few ways of doing this.
Present Day Gifting. The absolute easiest way to ensure that a certain person receives a certain item of personal property is to give it to them today. Many times the items which end up causing the most conflict aren’t even things that you would use on a regular basis, so giving it away now is a great way to make sure it gets to whomever you want. An added benefit is that people generally find more sentiment in receiving a gift from the living than they do an estate. It gives it more meaning. The downside, of course, is that you no longer have it. So if the personal property is something like a car or your wedding ring, you probably want to hold on to it.
In my personal experience, the more you gift as you get older, the happier you will be, and the less clutter you and your heirs will have to deal with!
Specific Bequests. The second-best way to give property is through specific bequests. These are gifts that you write out in your Trust or Will that specify a certain amount or item of property for a certain person. Common specific bequests include a vehicle, jewelry or gun collection, or other higher value items. You can even put broader things like “all personal property located in the barn”, although that could lead to a dispute as to what was in the barn at the time of death. But memorializing those gifts in your Will or Trust can be a powerful way to make sure that an heir receives the item you want for them.
If you do decide to give specific bequests of personal property, you should consider what you will want done if you no longer own that property at the time of your death. Would you want the heir to receive some other form of compensation? If you gift your vehicle to your daughter but you then sell the vehicle before you pass, would you want her to get some form of cash or other asset? In one case, the house was supposed to go to one heir with the remainder of the estate to be divided equally, but when the decedent passed the only asset left was the house, meaning one heir received the entire estate.
Another downside to this approach is that if you change your mind you will have to amend your Will or Trust.
All of these things should be considered when drafting specific bequests.
Personal Property Disposition Sheet. Most Wills or Trusts use language similar to the following:
If I leave a signed list of instructions with the original or copy of this Will respecting the distribution of various items of my tangible personal property, I direct my Personal Representative to make such gifts with the same force and effect as if such instructions were included in this Will.
You can then leave a signed and dated list of personal property and the recipient of that property with your Will or Trust. Wis. Stat. 853.32 (2)(a)(1) allows a will to incorporate “another document that lists tangible personal property not otherwise specifically disposed of in the will disposes of that property if the other document describes the property and the distributees with reasonable certainty and is signed and dated by the decedent.”
The benefit to this approach is that if you change your mind later you can destroy the old list and write a new one without having to re-write or amend your Will or Trust. You can also give property to people who may not otherwise be heirs. For example, if your neighbor has been mowing your lawn for the last three years and you want to recognize their kindness, you could leave your neighbor the lawn mower even though your neighbor is not an heir in the rest of your estate.
The downside, however, is that sometimes those lists get lost (intentionally or not) during the administration. You are also putting the burden on your representative to find those specific items and identify them correctly. When drafting this list, make sure you describe the property with “reasonable certainty” by using descriptions that people would recognize or by labeling property. For example, if you have a lot of jewelry, you can take pictures of certain pieces and label those pictures and put them with the list. Some of the same issues arise here as with specific bequests in your Will or Trust if you no longer own the property.
Giving All Assets to One Heir or Personal Representative to Distribute. This option is by far the riskiest, and it is typically not recommended. However, I have seen it work. In this scenario you leave absolutely all personal property to one heir or to the Personal Representative to be distributed or not distributed in that heir’s sole and absolute discretion, trusting that the one heir will be fair and divide property per your wishes. BE WARNED, that heir or Personal Representative would have NO LEGAL OBLIGATION to fulfil your wishes or distribute ANY of the personal property to the other heirs. Again, this method relies solely on trust and solid family dynamics, and we do not recommend it in almost any circumstances, but sometimes it is a viable option.
Conclusion
If the Ghost of Probate Yet to Come were to visit you tonight, what would your estate division look like? How would you like those issues resolved? Many of these concerns can, for the most part, be specified prior to a decedent’s death through proper planning. But ultimately many of these concerns also come down to how well your heirs get along and whether they are all in agreement as to certain sentimental items or practical gifts. But as you consider your family dynamics and your personal goals for your estate plan and property, it is important to consider what might happen if not everyone is so agreeable.
Next Steps
If you have questions regarding estate planning or trust or probate administration in Wisconsin, or if you would like assistance in administering an estate in West Bend, Slinger, Germantown, Kewaskum, Port Washington, Menomonee Falls, Milwaukee, Washington County, Sheboygan County, Dodge County, Ozaukee County, Waukesha County, or Milwaukee County, Wisconsin, please contact the author of this article, Attorney Isaiah M. Richie, at [email protected] or you can contact Schloemer Law Firm, S.C. at 262-334-3471 or by email at [email protected].
Originally published: November 2, 2023.
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- Estate Planning for Mixed Families and Second Marriages
- Your Family Business Succession Plan
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Disclaimer: The information contained in this post is for general informational purposes only and is not legal advice. -Due to the rapidly changing nature of law, Schloemer Law Firm makes no warranty or guarantee concerning the accuracy or completeness of this content. You should consult with an attorney to review the current status of the law and how it applies to your unique circumstances before deciding to take—or refrain from taking—any action. If you need legal guidance, please contact us at 262-334-3471 or [email protected].