When setting up one’s estate plan, consideration should be taken about the different types of assets which are to be devised (i.e. gifted at the time of death by Will or Trust). One category of asset that has become particularly popular and valuable to own is that of “precious metals.” Under Florida law, precious metals are defined as “any item containing any gold, silver, or platinum, or any combination thereof.” Section 538.31(1)(d) Fla. Stat. These can be in any number of forms, including bullion and coins.
Section 731.1065 of Florida’s Probate Code provides that “precious metals in any tangible form, such as bullion or coins kept and acquired for their historical, artistic, collectable, or investment value apart from their normal use as legal tender for payment, are tangible personal property.” One notable aspect of this provision is that the metals must be tangible. In some cases with precious metals investing, the owner only holds a certificate, not the actual metals themselves. Another interesting aspect is that the metals can have value for various reasons… historical, artistic, collectable, or investment. So, in one case, the metal might be held as a currently issued gold coin whose value is the gold itself. In another case, the metal might be contained in an old coin, e.g. a gold doubloon, which has value to a collector.
From an estate planning standpoint, what is the significance of precious metals being considered tangible personal property? One answer lies in Section 732.515, Fla. Stat. which provides as follows:
A written statement or list referred to in the decedent’s will shall dispose of items of tangible personal property, other than property used in trade or business, not otherwise specifically disposed of by the will. To be admissible under this section as evidence of the intended disposition, the writing must be signed by the testator and must describe the items and the devisees with reasonable certainty. The writing may be prepared before or after the execution of the will. It may be altered by the testator after its preparation. It may be a writing that has no significance apart from its effect upon the dispositions made by the will. If more than one otherwise effective writing exists, then, to the extent of any conflict among the writings, the provisions of the most recent writing revoke the inconsistent provisions of each prior writing.
Implementing this provision in one’s estate planning can be an easy way to designate beneficiaries to receive precious metals. A typical example of such a provision in one’s Last Will and Testament might red like this: “I may leave a written statement or list disposing of certain items of my tangible personal property. Any such statement or list in existence at the time of my death shall be binding with respect to all items devised therein.”
If the Will includes a provision similar to this, all that is needed is that the person giving the precious metals execute a “separate writing.” Essentially, a separate writing is a writing that identifies the item to be gifted, the recipient, and is signed and dated by the person executing the separate writing.
Here’s a simple example of a separate writing:
Separate Writing for Tangible Personal Property
I have executed a Last Will and Testament or Revocable Trust which refers to the disposition at my death of certain items of tangible personal property in accordance with a separate writing signed by me. I do hereby make this instrument for that purpose.
If the recipient of a particular item of tangible personal property does not survive me, such item shall be disposed of as though it had not been listed in this separate writing.
Recipient: Item Description:
Charles Smith, Jr. (my son) All Gold Krugerrands and gold bullion bars
Sally Smith (my daughter) All Platinum bullion bars
Kathy Smith (my daughter) All Silver Eagle coins and silver bullion bars
Date: December 2, 2022 Signed: Charles Smith Sr.