By Rebecca M. Vaccariello
In Florida, the law permits individuals to distribute personal property in a separate writing when you already have a will that references the writing. The Florida rule permits a written statement or list that is referred to in an individual’s will, to dispose of “tangible personal property” that is not otherwise devised in the will. There are certain requirements that need to be met as set forth herein, but overall this is a simple procedure that could benefit many people.
1. What is “tangible personal
“Tangible personal property” describes items that you can touch and feel, such as artwork, furniture, jewelry, cars, and collectibles. It would not include cash, stock certificates or real estate.
2. Requirements for the Written
Statement and Will
The written statement is required to be signed by the individual making the devise, and it is also required to describe the items and the person they are being devised to “with reasonable certainty.” It is a good idea to date the written statement. The individual’s will is required to reference the written statement specifically. If the will specifically devises the item of personal property, then that same property should not be referenced in the written statement.
3. When Can the Written
Statement be Prepared?
The written statement is not required to be prepared at the time your will is prepared. The written statement can be prepared prior to the will’s preparation, or at any time after the will is prepared. It is not effective to devise the personal property until the time when the will referencing it is prepared however.
4. Can the Written Statement be
Changed Over Time?
Yes. You can revise the written statement and replace a prior written statement. It is a good idea to date the written statement that you prepare because if more than one writing exists, the most recent writing will control if the written statements are inconsistent. To avoid confusion, if you prepare a revised written statement, you should dispose of earlier written statements.
5. Can I Just Prepare the Written Statement and Skip a Will?
No, this is not effective. In order for the written statement to devise your personal property, the statement must be referenced in a will.
6. Tips for the Written Statement
It is important to very clearly identify both the items you are attempting to devise and the people you intend to take them. Saying something like, “my favorite nephew” or another endearing phrase that you believe family will recognize, is not a good idea. As set forth above, although not required, dating the written statement is a good practice, as well as disposing of written statements that you have amended or revised with a later written statement.
7. Is Distributing Personal
Property in a Separate Written
Statement a Good Idea?
Of course it depends upon your personal circumstances, but for many people this option that is provided under Florida law is an effective strategy. After you prepare your will referencing the written statement, you are able to change who your personal property goes to over time without having to see your attorney each time. If you have specific items that you want to end up with certain people, it is a good idea. If you have family that may have a hard time distributing your personal property among them, it is also a good idea. In this instance it can save your family not only the possible grief and contention, but even the attorney’s fees that could be incurred in deciding who takes what property after you are gone. It is also a good idea if you have high-value items, such as a collectible car, that might get sold if there is disagreement as to who should get the item.
Personal property items can be a source of contention and disagreement for family when someone passes; therefore, as hard as it can be to address these issues for some individuals, it can be a huge relief for your family to not have to address this issue without you present. While it is always a good idea to have your estate planning documents reviewed if you have moved from another state to Florida, it can also be an opportunity to take advantage of this provision of Florida law.
This Article does not constitute legal advice and may not be relied upon as such. Each individual’s facts and circumstances are different. If you have any questions regarding your particular situation, please consult with legal counsel.
Rebecca M. Vaccariello’s practice focuses on business, probate and general civil litigation. Ms. Vaccariello is licensed to practice law in the states of Florida and New York. Prior to joining Salvatori, Wood, Buckel, Carmichael & Lottes, Ms. Vaccariello served as a judicial law clerk to a civil trial judge in New York for over five years, and, prior to that, worked for six years in a general practice litigation firm in New York.
Salvatori, Wood, Buckel,
Carmichael & Lottes