This column first appeared in the San Antonio Express-News and other Hearst Newspapers on October 30, 2020.
Dear Mr. Premack: I was reading your archive and had a question about your January 31, 2020 column. In it, you talked about the difference between the legal definition of “personal effects” and “personal property.” That Will had said all personal effects would go to his son, thinking that would include the car. You said the law requires personal effects to be limited to “articles bearing intimate relation or association with the person” so the car would not go to the son. I basically want to do the same thing, so is it ok for me to make a Will that says my “personal property” goes to my son so that he’ll get my household stuff and the car, too? Thanks. – R.C.
Your thought about broadening the wording for your Will is logical, but misguided. Your goal is to give your car and household items to your son. You propose to do so by saying he gets your “personal property.”
First, do not write a Will on your own. The mere fact that you are asking me, as an attorney, what the legal effect of certain words will be should indicate that experienced legal guidance is beneficial. Do not do your Will online. Pay an experienced estate planning attorney to help. How much did you pay for the car you want to pass to your son? Professional estate planning is way less expensive and will ensure that your valuable assets go to the people of your choice, not end up in a confused contest.
Second, think mathematically. Remember “sets”? There are sets, supersets, and subsets. A set is a collection of items. A subset is some object contained within that set. A superset is a group that includes a variety of different sets. The legal term “personal effects” is a collection of items with the characteristic of intimate association with the owner. It is a subset of “personal property” which is legally a broader collection of tangible and intangible items excluding real property. The term “real property” is legally a collection of items made up of land and rights associated with ownership of land. The word “property” would be the superset, containing a legal set called “personal property” and a legal set called “real property.” The word “car” would be a subset of personal property that has no intersection with another subset of personal property called personal effects.
There are two important distinctions in that last sentence. One: if your Will gives your son your personal effects, he does not get your car. Two: if your Will gives your son your personal property, he gets your car and a whole lot more, including your bank accounts and investments. How do you give him your car? Say “I give my son my car.” Being specific is often the best solution.
There is actually a court decision about these subsets of property. The 2020 case Estate of Hunt, decided in the Houston court of appeals, dealt with a Will that said all “remaining household and personal property” passed to person A. The Will also said the “remainder” passed to person B, who claimed ownership of the bank accounts and stocks. The court ruled the set “property” has a subset called “personal property” that includes tangible and intangible items which do not fall into another subset called “real property”.
Accordingly, person A got the car, the bank accounts, the stocks, the household items, and the intangible rights like copyrights and the right to license the decedent’s image. [There are a series of laws involving celebrities who, when they die, grant ownership of their image to some heir who can benefit. Think Elvis, or the scene in the 2016 Star Wars movie that used a computer simulation of an actor from the 1977 original who had died in 1994.]
You do not want to give your son such a broad subset of property. You want to limit the gift so he only receives the car. Being too specific though, has its own perils. If you say “I give my son the 2019 Tesla Model S” but sell it before you die, is your estate obligated to buy him a 2019 Tesla Model S? Likely yes. Thus, you want to include other conditions like “if I still own it”. To avoid these and other pitfalls and to save money, consult with your experienced estate planning attorney.
Paul Premack is a Certified Elder Law Attorney, handling Wills and Trusts, Probate, and Elder Law issues. He is licensed to practice law in Texas and Washington. View past legal columns or submit free questions on those legal issues via www.Premack.com.