Updated: Feb 4, 2022
This column first appeared in the San Antonio Express News and other Hearst Newspapers on January 31, 2020.
Dear Mr. Premack: I am having a discussion with my father about his old Will. It says that he leaves his personal effects to me (I live in town) and that the rest goes to me and my two brothers. Dad recently told me that he wants me to have his car collection, and that the Will already covers it because the cars are personal effects because he says they are “personal property, not real estate”. I just told him that he should be sure and change his Will if his lawyer says that a change is needed. If he leaves the Will alone, is it enough for me to get his cars? – C.G.
If your father wants you to inherit his cars, he should be sure that his instructions are legally binding. Kudos to him for already having a Will; too many people ignore their planning altogether which makes the process much more difficult for their survivors. But if his Will does not do as he wants, then it must be officially modified to include his new instructions.
He is correct that there is a difference between “personal property” and “real property”. Lawyers often use specific words of art to indicate special meaning, the question is whether, for the purposes of a Will, automobiles (which are personal property) also qualify as “personal effects”. If the answer is yes, he can leave the Will as-is, but if the answer is no then he should take legal action to fix the situation.
There was a recent court decision in the Matter of Estate of Ethridge (decided by the Appeals court in Eastland) that addressed this issue. Mrs. Ethridge made a Will that left her personal effects to her nephew, and the Will ended there. She had not hired a lawyer to write the Will. Her nephew claimed that the term personal effects included her bank accounts and mineral rights. Others in the family claimed that personal effects are more limited, so the money and minerals would pass to family under the intestacy laws instead of just to the nephew.
The Appeals court agreed with the trial court, holding that the term personal effects is a narrow subset of personal property. Personal effects are limited to “articles bearing intimate relation or association with the person” who died. Thus, personal effects include clothing, jewelry, eyeglasses, luggage, and similar items used by the decedent. The nephew got those personal items, and the valuable minerals and accounts had to be distributed to the rest of the family who had to be identified by the court in a proceeding to determine heirship.
For automobiles to be included as personal effects, you would have to prove that they bear “intimate relation” to your father. Certainly, he drives the cars, but he does not wear or use them for intimate purposes. Further, the cars are separately titled whereas items like clothing and jewelry do not usually have separate documents of ownership that are recorded and maintained by the state. Even if your brothers are completely in agreement that your father’s intent is to give you the car collection, remember that they can change their minds and argue about it later.
To be safe, your father should talk to his lawyer. Ideally, his Will would be amended or replaced with the specific instruction that the cars collection is to pass to you. He may also want to include wording to the effect that “any car he owns a the time of death” goes to you, in case he buys a other cars between now and when he dies.
Additionally, your father could take advantage of Texas’ transfer on death option for a motor vehicle. This has existed in law only since 2017 when it was enacted via Senate Bill 869. You can read more about it in my column from August 29, 2017 and from the Department of Motor Vehicles on their form VTR-121, available online.
Paul Premack is a San Antonio Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. View past legal columns or submit free questions on those legal issues via www.Premack.com.