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Law Offices of Ronald W. Rutz
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September 8, 2004: Memorandum for Tangible Items

Q: My kids will not tell me what they want. So I am thinking about letting them fight about my stuff. But tell me, is there something I can do right now?

A: In all my years of practice, I have seen many times when the children did not cooperate in these kinds of matters. Remember, your children do not want to give the impression of being greedy to either their siblings or to you. So take the initiative, be the parent, and set up matters to avoid family fights. Putting labels on certain things or telling "everyone" your wishes will not be effective unless reduced to writing.

In your will, you should have a clause that will permit you on a separate sheet of paper to list certain things that will go to certain people.

The listing will not work for real property or specific listings of intangible things such as stocks, bonds, certificates of deposit, etc. (because intangibles are just pieces of paper with printing on them representing abstract ideas). Thus, think of leaving "stuff" such as jewelry, the car, the pet dog, books, etc. on the list. To leave real estate or, for example, $1,000 to someone, the bequest would have to be included in the will and could not be part of the memorandum list.

To be effective, the list does not have to be witnessed, or notarized, or even be kept with the will (under no circumstances attach the list to the will). But it is best if it is in your handwriting and then dated and signed. Any changes to the list should be signed, dated, and, if possible, in your handwriting. Being able to change your list means that it would not be necessary to have to pay an attorney to amend your will, because the list would be adjusted by you without the need of a codicil.

The memorandum list can include one or two things, everything, or somewhere in between. So some type of procedure should be included in your will that sets up a process to divide "stuff" left off the list. It has been my experience that family members will fight like cats and dogs over exactly this kind of property.

For unlisted items, I have found that it is best to say that if the children can then agree, permit them to divide the unlisted tangible personal property. But set up a provision in your will in case someone is unhappy or feels that he or she is not being treated fairly, etc. Thus instead of causing problems, the disenchanted child would simply point to the provision that you have established to follow in dividing up the unlisted items.

Keep the procedure simple, but I have found in my practice that year in and year out, such a provision has reduced or eliminated family blowups six to eight times each year.

So take the bull by the horns and do your list. You may not be around but I hope that you do want your descendants to continue to have a familial identity and relationship. It would be sad for everyone involved if these kinds of problems permanently destroy the family identity.

But if you do not care, do nothing and chances are there will be family difficulties even though you may not be around to see it.

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