You May Be Able To Leave A List For Passing On Special Items
This week's question:
In case I pass on, I want to leave my wedding rings to my daughter, Rebecca. Shall I put that in my will? However, what if I change my mind? Or what if something happens to Rebecca? Will I have to go to the lawyer's office and change my will? This can get way too expensive, and maybe even cost more than the rings are worth! Is there any way around this?
/s/Dana D.
Almaden Valley
Dear Dana:
This has been a problem for many years. Many of us want to leave certain items to our family but to list them in a will or living trust becomes much too cumbersome. Our wishes change over the years as does the list of items and intended beneficiaries of the gifts.
If all of these items are listed in a trust or will, it often becomes quite expensive for the law office to list them and then when changes to the list are made, a new legal bill is generated for the new legal work. And this does not make for happy clients. And no wonder. But I may have some good news for you, Dana.
Now, there is a good way around this. As of January 1, 2007, a new law went into effect that allows consumers to refer in their will to a list that will be found at their death. The law is California Probate Code §6132.
The following are some of the key provisions of this relatively new law:
A will may refer to a writing [or list] that directs disposition of tangible personal property not otherwise specifically disposed of by the will, except for money that is common coin or currency and property used primarily in a trade or business. A writing [such as a list] directing disposition of a testator's [i.e., will maker's] tangible personal property is effective if all of the following conditions are satisfied:
* An unrevoked will refers to the writing.
* The writing is dated and is either in the handwriting of, or signed by, the testator [i.e., the will maker].
* The writing describes the items and the recipients of the property with reasonable certainty [for example, my wedding rings shall pass to my daughter, Rebecca].
The writing [i.e., the list] may be written or signed before or after the execution of the will and need not have significance apart from its effect upon the dispositions of property made by the will.
A writing that meets the requirements of this section shall be given effect as if it were actually contained in the will itself, except that if any person designated to receive property in the writing or list dies before the testator, the property shall pass as further directed in the writing and, in the absence of any further directions, the disposition shall lapse.
The testator [will maker] may make subsequent handwritten or signed changes to any writing, such as a list of personal property items. If there is an inconsistent disposition of tangible personal property as between writings, the most recent writing controls.
There are special rules covering the situation where a list may not be dated and if the testator [will maker] lacked legal capacity to make a will or the list.There are also limits as to the total value of items on the writing or list. The total value of tangible personal property identified and disposed of in the writing shall not exceed twenty-five thousand dollars ($25,000). Also, if the value of any particular item of tangible personal property described in the writing exceeds five thousand dollars ($5,000), that item shall be disposed of pursuant to the remainder clause of the will and not according to the list.
"Tangible personal property" means articles of personal or household use or ornament, including, but not limited to, furniture, furnishings, automobiles, boats, and jewelry, as well as precious metals in any tangible form, such as bullion or coins and articles held for investment purposes.
The term "tangible personal property" does not mean real property, a mobilehome, intangible property, such as evidences of indebtedness, bank accounts and other monetary deposits, documents of title, or securities.
"Common coin or currency" means the coins and currency of the United States that are legal tender for the payment of public and private debts, but does not include coins or currency kept or acquired of their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment. In other words, it would not work to have normal money on the list but it would work to have historical and collectable coins.
You can read California Probate Code §6132 for yourself by going online with your favorite search engine. Enter California Probate Code §6132 and it will be on your screen in about a half a second, along with lots of advertising. Or use one direct link: http://law.onecle.com/california/probate/6132.html.
So, there you have it, Dana. I hope this helps in dealing with those wedding rings and anything else that might be placed on a list to be found at your passing. Of course, you will want to consult with your own attorney about your will and living trust for the complete picture of all issues involved, including the list. Please remember that you need to have a will that refers to the list. You cannot just make a list without a will to comply with California Probate Code §6132.
/s/Donald J. DeVries
Almaden Valley
Donald J. DeVries is an attorney practicing law in the Almaden Valley. Past Almaden Times articles since 1986 can be accessed through his web site: www.almadenvalleylawers.com
