PROBATE CORNER
What Property Can Be Distributed Under A Separate Writing
DAVID M . GARTEN
In 1974 , the Florida legislature originally adopted language from UPC § 2-513 that explicitly excluded “ money , evidences of indebtedness , documents of title , securities , and property used in trade or business ” from a devise by a separate writing . In 2001 , the legislature amended § 732.515 without adding a statutory definition of “ tangible personal property ”. The current statute provides that a decedent can use a separate writing to “ dispose of items of tangible personal property , other than property used in trade or business , not otherwise specifically disposed of by the will .”
Tangible personal property : In Florida , there is no definition of tangible personal property in the estate / trust context . However , Washington State ’ s definition is consistent with the definition used by the majority of states and Florida generally . The Code defines “ tangible personal property ” as : “ articles of personal or household use or ornament , for example , furniture , furnishings , automobiles , boats , airplanes , and jewelry , as well as precious metals in any tangible form , for example , bullion or coins . The term includes articles even if held for investment purposes and encompasses tangible property that is not real property . The term does not include mobile homes or intangible property , for example , money that is normal currency or normal legal tender , evidences of indebtedness , bank accounts or other monetary deposits , documents of title , or securities .” See Wash . Rev . Code § 11.12.260 ( 4 ) Separate writing may direct disposition of tangible personal property — Requirements .
Intangible personal property : Pursuant to § 198.01 ( 11 ), F . S . ( Estate Taxes ), the term “ intangible personal property ” is defined as : “ incorporeal personal property including deposits in banks , negotiable instruments , mortgages , debts , receivables , shares of stock , bonds , notes , credits , evidences of an interest in property , evidences of debt and choses in action generally .”
What can / cannot be distributed under a separate writing ?
• Animals , such as pets and livestock , are considered tangible personal property . See Karin Prangley , ABA Joint Fall Tax & RPTE Meeting , September 24-26 , 2009 , Disposition of Tangible
Personal Property : Estate Planning
Considerations .
• “ Personal effects ” or “ personal property ” may include tangible personal property . See Sandy v . Mouhot , 438 N . E . 2d 117 ( 1982 ). See also In Re Horne ' s Estate , 171 So . 2d 14 ( Fla . 2d DCA 1965 ) wherein the court held that the “ words ' personal effects ' or ' personal property ' when used in a will have no fixed meaning and there ' is always a question of the intention of the testator so ascertained from the particular setting in which the phrase appears and the general tenor of the will .' Although the term ' personal property ' is sufficiently broad in its technical sense to include all forms of property other than interests in land , ' in the majority of cases ' the courts view the intention of the testator as carrying a restricted meaning not including various species of intangible personalty ."
• Cash and stocks held in certificate form are not considered tangible personal property . See UPC § 2-513 ; 63 Am . Jur . 2d , Property , § 22 . See also Baldwin v . Estate of Winters , 944 So . 2d 437 ( Fla . 4th DCA 2006 ) wherein the court held that a handwritten note stating that the decedent would like one of the personal representatives " to give Allan a new car from " her estate ( Allan requested $ 50,000 to buy a Mercedes ), was a devise of a monetary amount that cannot be effectuated through a separate writing .
• A gift of a container ( i . e ., safe deposit box , safe , or desk drawer ) or the contents of a container usually include all of the property located inside the container , including intangibles . See What Passes Under Legacy of Bequest of Things Found or Contained in Particular Place or Container , 5 A . L . R . 3d 466 , 528 . But see Souder v . Johnson , 501 So . 2d 745 ( Fla . 4th DCA 1987 ) ( When used in its ordinary sense , the phrase " contents of a home " designates those items of tangible personal property which convert an empty building into a habitable dwelling . Such a construction would suppose the inclusion of furniture , fixtures , floor coverings , electrical appliances , pictures , articles of decoration , linens , kitchen appliances , silverware , house
PBCBA BAR BULLETIN 16 and gardening tools , garden furniture , and other articles of similar character commonly used to maintain a home . It would not include intangible personal property .); Davis v . Shanks , 911 S . W . 2d 390 ( Tx . App . 1994 ) ( same ); In re Estate of Shoptaugh , 482 N . E . 2d 1142 ( Ind . App . 1985 ) ( stating " general rule " that the term " contents " does not refer to intangible property such as stocks )
• Precious Metals . In Florida , it is undecided whether bullion or coins that are not commonly used as currency may constitute tangible personal property . See The Florida Bar Real Property , Probate and Trust Law Section Probate Law and Procedure Committee Coins and Bullion Subcommittee White Paper Proposed Revisions to 731.201 , F . S . ( 2019 ). Compare In re Macfarlane ' s
Estate , 459 A . 2d 1289 ( Pa . Super . Ct . 1983 ) wherin the court held that because gold and silver coins have both intrinsic and marketable value in and of themselves , they cannot be considered intangible property , without more . The coins are more than the mere representation or evidence of value , as opposed to stock certificates or paper currency . See also In re Estate of Lowe , 191 Wn . App . 216 , 361 P . 3d 789 ( Wash . App . 2015 ). In
Lowe , the issue was whether precious metals , such as bullion or coins , can pass by separate writing . The court reasoned that “ Currency ” is defined as “[ a ] n item ( such as a coin , government note , or banknote ) that circulates as a medium of exchange .” BLACK ' S LAW DICTIONARY 465 ( 10th ed . 2014 ). Similarly , “ legal tender ” is “[ t ] he money ( bills and coins ) approved in a country for the payment of debts , the purchase of goods , and other exchanges for value .” Both definitions describe bills or coins presently used to purchase items of value . In contrast , precious metals , such as bullion or coins , are often kept either for their sentimental value or for investment purposes , and the value varies based on the prevailing prices on the precious metals market . The court concluded that because the decedent paid a premium for the silver coins in anticipation of greater worth in time , the coins were best classified as precious coins rather than normal currency ; therefore , the coins were tangible personal property rather than intangible currency .