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Wednesday, May 19, 2010

Do I just get the house, or the contents of it as well?


Smooth administration of an estate starts with a good Will, but that doesn't help much if you're the beneficiary or executor of an estate with a Will that doesn't give you enough information. And to be frank, many executors and beneficiaries include all kinds of erroneous assumptions and leaps of logic that muddy the waters even when there is a pretty decent Will.

For example, I see assumptions come into play when a testator makes a Will which leaves a house to a beneficiary. Some people reading the Will assume that a house comes with everything in it so the testator must have intended that to happen. Others assume just the opposite and conclude that if the testator had wanted the contents of the house to be given to someone, he or she would have come right out and said it. Another completely false (in law) assumption that I see come into play pretty regularly is the idea that when a testator passes away, each item that he or she owns will be returned to the person who gave him or her that item in the first place.

Keep in mind that when dealing with the personal and household belongings of someone who has passed away, it's not always the monetary value that concerns the beneficiaries. Sometimes it's the sentimental value, because a beneficiary wants some kind of keepsake of the person who died.

So when a Will leaves a beneficiary a house, does the beneficiary get the household contents as well? First of all, look at whether that testator has a spouse (legally married or otherwise) who lives in the house with him or her. If so, assume that with very few exceptions, all of the household contents are jointly owned between the testator and his or her spouse, and that the spouse will own all of the contents. (For the sake of concentrating on personal items, I'm not going to go into the obvious Dower Act issue that is staring me in the face here.)

Then look at the wording in the Will.

First of all, a properly drafted Will will say "contents" if the contents are to be included in the gift. However, if that word is missing, you have to look further.

Does the Will say that the testator is transferring "the title to the property"? To me, that indicates that the household contents are not intended to be included.

Does the Will deal with household contents and personal items in a separate clause of the Will? In many Wills, there is a paragraph that says how the testator wants to divide up the items. This is usually not a list of individual items, but a general statement that says something like "my household and personal goods are to be divided among my children as they agree". If that kind of clause is included, it would suggest that household contents are not to be included in the gift of the property.

Has the testator made a Memorandum of Personal Effects, or other informal list of certain items to be left to specific people?

If the Will doesn't say anything helpful about this issue and no Memorandum has been found, it is possible for the residuary beneficiaries of the estate to agree that the items in the house can be given to the beneficiary who is getting the house. (If I were the executor in that case, I'd get that agreement in writing).

Keep this in mind when you are having your own Wills prepared. Many people think that the shorter and simpler a Will is, the better. However, if you include just a few more sentences such as instructions as to what to do with the personal belongings, things will run smoothly and properly after you've passed away.

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