By John A. Meier, II
It is official: You can now use letters or lists to convey personal property to others as part of your estate planning. Effective January 1, 2021 the laws in Georgia changed to make the use of writings that are not part of a Last Will and Testament, such as letters or lists, binding on the Personal Representative of an estate (such as the Executor) and the other beneficiaries named in the Will. The use of gift letters and lists has always been fairly common practice, but those letters and lists were not legally binding on the Executor or beneficiaries. In many situations, the beneficiaries honored the wishes of the person writing the letter or list. However, if a beneficiary did not like the way the gifts were to be made as set forth in the letter or list, the Personal Representative could not be made to honor the deceased person wishes.
Now, for such letters or lists to be enforceable, the gifts of personal property must be:
- Made by a written statement or list disposing of items of personal property,
- Be signed and dated by the person making the Will,
- Describe the items they want others to have with sufficient detail, and
- Identify the beneficiaries they want to receive such items.
Provisions must be included in an individual's Will stating that the person making the Will intends to have such a writing or list. The provision in the Will can make specific reference to a writing or list already in existence or it can refer to the writing in existence at the time of that person's death. The writing or list may be altered by the person making his or her Will so long as the letter or list is signed and dated on the date of such alteration. If there are more than one such written statement or list, then to the extent of any conflicts among the writings, the provisions of the more recent writing shall revoke the inconsistent provisions of each prior writing.
It is important to know that if someone has a Will which disposes of the same item included in that person's separate letter or list, the gift as stated in the Will controls.
As with all new laws, there are some unanswered questions. For example, one of the items expressly excluded from being included in any such written statement or list is money. What about coin collections? Do coin collections fall within the exclusion for "money" on such list? I anticipate gifts of coins from a collection that are not based on the monetary values of the coins but on their historical or sentimental significance should be permitted. Other states have had similar laws for many years and some guidance may be obtained from those states for questions like this, at least until the Georgia appellate courts have provided specific guidance. In the meantime, it is hoped the use of gift letters or lists will be beneficial to those wishing to make gifts of personal property to others in ways that are meaningful and important to them.
If you have questions about this, or if we can be of assistance to you in any way, please let us know.
John Meier has been assisting clients with their estate planning, long term care planning, elder law, trust administration, and probate needs since 1985. John heads up FCW's Estate Planning and Probate division and continues to focus his efforts on assisting individuals and families with their estate planning, long term care, elder law, probate, and trust administration needs. John has been named to Georgia's Legal Elite and Atlanta Magazine's top Wealth Managers. John has also been a Certified Trust and Financial advisor, a nationally recognized certification, distinguishing him among his peers.