When most people think of estate planning, they think of assets that include money, real estate, and personal property. But, included in someone’s estate could be invaluable personal property, such as family heirlooms or keepsakes. This type of property should not be overlooked in your estate plan just because it may not have a high dollar value because it still has sentimental value that cannot be quantified. Part of a thorough estate plan is determining how you want these priceless family heirlooms and keepsakes distributed once you are gone. Personal property and family heirlooms specifically cause more family turmoil than larger assets worth more money.
Issues You May Face
An “heirloom” is a particular piece of the personal property passed down from one generation to the next and will continue to be passed down for generations to come. Be sure to talk about the family heirlooms and keepsakes with your family so that feelings and expectations regarding these items are out in the open. Also think about having your heirlooms and keepsakes appraised, if possible, by someone reputable so you can provide your heirs with the necessary documentation, and so the items can be appropriately identified in your estate planning.
How to Distribute
When it comes to family heirlooms and keepsakes, the typical division plans may not work. If the item is of low dollar value, there may not be a way to equalize the distributions monetarily. This can also be the case if the dollar value of the keepsake is incredibly high compared to the value of the remaining estate. Furthermore, if there is only one of such an item, there is no way to split one thing between multiple people. Whether it’s great-grandfather’s WWI medals, the cherished family crystal, or your mother’s pearls, you will need to decide the best way to distribute these assets based on your unique family situation. Regardless of who receives these items, they are usually distributed by way of a personal property memorandum in those states that permit this practice.
The personal property memorandum allows you to express your wishes and avoid the hard feelings that could come about by leaving all of the personal property equally to your children. This document is a written statement regarding the specific property; the document is then referenced in your last will or living trust and identifies who should inherit what property. This document also has the added benefit of being able to be modified or revised without the need to execute a new will or amend your trust. However, please remember, the personal property memo is not to be used in place of a will but instead as a helpful tool for the executor. Also, if you have mentioned a specific item in your will, you do not want to include that item in the memorandum.
Gifting During Life
Because of the sentimental nature of family heirlooms, you may want to consider gifting these items during your lifetime instead of waiting until your death. If you gift your family heirlooms and keepsakes during your lifetime, there is personal joy in witnessing your loved one receiving the family treasure. That being said, be careful of gift tax issues that may be incurred depending on the value of the item. Another concern that you may want to address depending upon the value of the family heirloom is whether or not this lifetime gift should be considered part of the recipient’s share of your eventual estate.
Estate Planning Advice
A comprehensive estate plan that considers all assets – including family heirlooms and keepsakes – is key to making sure your wishes are followed once you are gone.
No matter who you are, or where you are at in life, it is essential to have a will. A will allows you to have control over what happens to your assets and personal belongings if you die, plus it will enable you to take steps to care for your family.
Life is always changing—as a result, even if you already have a will, it is possible you may need to revisit and revise your current will. Certain life events can change your thoughts about both who should receive your assets and how they should be distributed.
When Should You Update Your Will?
A few of these life events that could cause you to take a second look at your will include: children, divorce, and death.
- Children: Having children is often the main reason people decide to create a will in the first place. If you already have a will and then have a child, it is important to revise your will to include your child (or children). Perhaps the most important revision would be to name a guardian for your minor child(ren). Typically, if only one parent dies, the surviving parent will become the guardian of the minor children. However, if both parents die, things can get more complicated. If you don’t have a guardian named in your will, the decision of who should parent your child(ren) in the event of your untimely death could be left up to a Court. To avoid this, take time to name a guardian for your child(ren)—this way you can choose someone you trust to love and care for them just as you would.
- Divorce: Divorce is another life event that may cause you to take another look at your will. A divorce often results in splitting assets between the two spouses, which may mean that you don’t end up with an asset listed in your will (a specific home, car, bank account ). Additionally, you will want to name new beneficiaries or recipients for your assets, since your ex-spouse will likely no longer be the person you choose to leave them to. If your ex-spouse was listed as the executor of your estate, you can name a new executor.
- Death: On occasion, someone you list in your will may die before you. If this happens, you will want to revisit your will. If the death was of the person you named as your child’s guardian in the event of your death, you will need to pick another trusted individual. If it was someone you picked as a beneficiary to inherit a personal asset or money, you will want to name someone new, especially if the asset has sentimental value.
Unfortunately, even if we take time to plan for our future, things can change. Unexpected life events may require you to revisit, update, and alter your will. To make this process simple, you should reach out to an experienced attorney.
What happens if I Die without a Will?
The State does not automatically get your property if you die without a Will. The only way your Estate will Escheat to the State is if you have NO living heirs: no parents, no siblings, no spouse, no children, no grandparents, no aunts or uncles, or any cousins. In fact, in Texas there is no limit on the degree of relationship required to qualify as an heir; this includes distant relatives or the so-called “laughing heirs.”
The State of Texas has drafted a will for you. Therefore, if you die without a will, Texas has laws that state what will happen. For example, the intestacy statue provides that if you are single and don’t have any children your parents will inherit your property equally. What if you didn’t want one of your parents to inherit your Estate. This is an excellent example of why you need a will.
Second, if you die without a will, it will be twice as expensive and more time consuming for your loved ones. The documents that are required by the court when there is not a will are doubled. For example:
Will No Will
Application to Probate Application to Probate
Application to Determine Heirship
Ask Court to Appoint Guardian Ad Litem
Judgement Claiming Heirship
These extra steps will cost your family anywhere from an additional $2,000 to $5,000. Then, if one of those long-lost siblings, cousins, or other relatives contest the Estate, you can expect to pay five to ten times more. Contested probate battles are some of the longest, most brutal, and most expensive cases. Often families can pay upwards of $50,000 to $100,000 or more depending on the size of the Estate and how long the parties disagree.
“Broadly stated, a will is the legal declaration of a person’s intentions that are to be performed after his death.” 
The origin of the term Last Will and Testament dates to before the King’s common law courts in England when the English law custom was to double words of English origin with synonyms of French or Latin origin, like “Free and Clear” and “Had and Received.” 
It’s important to know that every state is different. In Texas, a will allows you to name an executor, name a guardian for minor children, leave instructions about what happens to your property, and even care for your pets.
Creating a will is an integral part of planning just like life insurance. None of us like to think about our demise, but looking to the future is imperative if you want to save your family heartache and expense. The process of drafting a will and making an estate plan brings peace of mind, knowing your loved ones will be taken care of when you are gone. It also saves your family a considerable amount of money.
How it Works
Whether you hire our firm or another firm, there is no time like the present! The first step is hiring an attorney. Second, is a consultation with the attorney. You need to work with the attorney to provide your personal information. Then, the attorney will draft your documents, and you will work with the attorney to finalize your will and disability documents. Lastly, there will be a will signing with you, two witnesses, and a notary.
A will may be of any length and typically includes the testator’s signature, the signatures of two witnesses, and a named living executor responsible for ensuring the terms of the will are fulfilled in compliance with the judgments of a probate court. The probate court oversees the executor and makes sure they are carrying out your wishes. A will designated as an individual’s last Will and Testament becomes the final authoritative document that supersedes any other wills.
Consequences of No Will
Most importantly, when a loved one passes away without a will, it costs twice as much. If you die without a will in Texas, the Texas Estates Code dictates how your assets will be distributed. Who gets what depends on who your living relatives are at the time you pass away. If you die without a will and you do not have any family then your property will go to the State, but this is extremely rare.
Lastly, having a will and an estate plan will give you a greater peace of mind. Without a will, you may have fears about how future affairs will be handled. Knowing that you have an official plan in place will allow you and your family to feel more at ease about the future.
– Erin C. Callahan, Founding Attorney