When you are contemplating your estate and how you would like your property distributed to your loved ones after your death, the first thoughts that may come to your mind are “I want my jewelry to go to my daughter and stay in the family,” or “my classic car should go to my brother.” 

Ensuring the smooth transfer of your cherished possessions is a significant consideration when creating your estate plan, especially if you want to pass on special family heirlooms. What if you give some of your jewelry to your niece while you are alive, but your daughter expects to receive it after your death? Your actions while alive can significantly impact the distribution of your tangible personal property at your death if you do not give proper direction in your Will.

Understanding Ademption by Extinction

In Massachusetts and in many other states, the legal doctrine of “ademption by extinction” arises when a specific distribution of an asset in a Will cannot be fulfilled because the property no longer exists in the deceased’s estate at the time of death. In other words, if you state in your Will that a particular item goes to a specific person, and that item is no longer owned by your estate at the time you pass away, that person does not receive the item.

For example, if your Will states that your diamond ring will be distributed to your daughter when you pass away, and you sell the ring before your death and do not purchase another one, then your diamond ring is not held in your estate at death and, therefore, it cannot be distributed to your daughter. Under Massachusetts law, this further means she will not receive compensation or replacement for the lost property (the diamond ring), unless the Will specifically provides for an alternative arrangement. In other words, your daughter will be out of luck with receiving a diamond ring or its equivalent from your estate after your death, although there are a few limited exceptions to this rule.

Solutions to Ademption by Extinction

Given the potential complications of ademption by extinction, you should think carefully about how you distribute your tangible personal property in your estate plan. Here are some things to consider:

1. Regularly review and update your Will.

It is important to periodically review the specific distributions you made in your Will to reflect changes in your assets. When you sell your car or notice your aunt’s pearl necklace gathering dust in the jewelry box, you should review your estate plan to make sure it still aligns with your wishes to distribute that tangible personal property after your death. If you acquire valuable items, such as artwork or antiques, make sure to update your Will to specify who should receive them.

2. Provide detailed descriptions.

When distributing specific items, you should provide detailed descriptions that uniquely identify each item. For example, instead of describing an item as “my car,” you may describe it as “my red 2023 Lamborghini.” This can help prevent confusion and disputes among beneficiaries in case you have multiple Lamborghinis.

3. Create a Tangible Personal Property Memorandum.

In Massachusetts, you can create a separate document called a Tangible Personal Property Memorandum that accompanies your Will. This document allows you to specify in detail the distribution of your tangible personal property and can provide guidance to your Personal Representative when it is time to distribute items to specific beneficiaries. This memorandum is typically referenced in your Will and can include provisions that allow the memorandum to be legally binding on your Personal Representative. It is a good idea to work with an experienced estate planning attorney to make sure your distribution wishes are properly expressed in the memorandum.

You can also easily change the memorandum from time to time as you acquire and sell personal property without the need to visit your estate planning attorney every time. Keep in mind that your tangible personal property consists of items such as furniture, clothing, cars, collectibles, artwork and jewelry, and the memorandum does not distribute other assets, such as bonds, cash, treasury certificates, bank accounts, real estate, or retirement accounts.

4. Discuss your intentions.

Communication is key. Have a conversation with your loved ones and Personal Representative to ensure that they are aware of your wishes regarding the distribution of your tangible personal property.

5. Work with an experienced Estate Planning Attorney.

Estate planning laws can be complex. A qualified estate planning attorney can provide valuable guidance to help you navigate the nuances of ademption by extinction and ensure that your distribution wishes are carried out effectively.

It is important to us at Samuel, Sayward & Baler to assist you with preserving your legacy and providing you with peace of mind that your cherished possessions are passed on to your loved ones in accordance with your wishes. We can help you create an estate plan that minimizes the risk of ademption by extinction and other issues that may arise after your death by offering guidance tailored to your specific tangible personal property and how to best distribute it through your Will or otherwise.

Attorney Brittany Hinojosa Citron is an associate attorney with the Dedham firm of Samuel, Sayward & Baler LLC, which focuses on advising its clients in the areas of trust and estate planning, estate settlement, and elder law matters. This article is not intended to provide legal advice or create or imply an attorney-client relationship. No information contained herein is a substitute for a personal consultation with an attorney. For more information visit ssbllc.com or call 781/461-1020. 

August, 2023

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