Monday, February 06, 2006

Personal Property Distribution in Your Will - The Small Stuff Really Matters

Category: Estate Planning

This article from a local Maryland Paper - the Herald-Mail reminded me of one of the strange truths about administering an estate after someone dies - the biggest issues are often over the items with the smallest extrinsic value, but the largest emotional value. For the most part, if you have a will, the distribution of your "main assets" (bank account, stocks, bonds, real estate, etc.) is pretty cut and dried - liquidate the assets, pay expenses, and divide up by the percentages set forth in the will. In most cases, that means that each child gets an equal share, and there are limited issues (unless there is a claim of undue influence, etc.).

However, it is not so cut and dried when it comes to your "stuff" - think here clothes, furniture, jewelry, decorations, family photos - items that may have no value to anyone outside of your family, but a huge value to your family members. Combine that with the fact that most personal property clauses in a Will are something like "To my then living children, to be divided among them as they shall determine, or if they cannot agree, as my executor shall determine. Any items not so distributed shall be liquidated, and the proceeds distributed to such children."

The problem comes in when the children don't agree - and this disagreement is set against a context of a lifetime of family jostling between siblings. You may think neither child would want your collection of crystal pigs for example - but wait to see the fireworks that fly when one child takes the pigs because "Mommy wanted her to have them" and the other children don't agree. The issue here isn't the thing itself, as much as the memories attached to it. Memories are harder to divided up into equal percentages than a bank account.

Some possible solutions?

In New Jersey, pursuant to NJSA 3B:3 11, you can write a letter stating who gets what for your personal stuff and sign it - no need to go through the formalities of a Will. This informal letter can only control the distribution of your "stuff", not your hard assets. However, it is very useful as you can keep changing it without having to go back to the attorney.

In other States (like New York) that do not allow for a personal property distribution, one idea is to a formal codicil (amendment)to your will to address personal property. You should see your attorney each time you want to change the codicil, but at least you will only be changing a smaller document.

Another idea is the "Stand in Line and Pick" concept - somewhat like the football draft. It goes something along the lines of kids drawing numbers, and then child with the highest number getting to pick any item (or from a specified group of items such as photo albums, jewelry, keepsakes collections, guns) and then the next in line can pick and so forth.

However, if you absolutely want an item to go to someone (1) let all your children know, while you are alive, that it is your wish for your engagement ring to go to your eldest grandson for example, not just the family you are leaving the item to, so there is no miscommunication down the road, (2) write down, whether formally or informally as your state allows, where you want your assets to go.

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At 2/07/2006 1:19 AM, Anonymous Anonymous said...

Better yet, give the item(s) to the person that you want to have them while you are still alive as long as you are of sound mind. My Mom did this the last 10 years of her life. Everyone was happy to receive her gifts and there where no disagreements after she was gone.

At 2/07/2006 11:38 AM, Blogger Deirdre R. Wheatley-Liss, Esq. said...

Ahh, an excellent suggestion - and one I often give to clients when meeting with them, but neglected to add to the post. As long as you are still secure with your assets, why not make gifts and enjoy your family enjoying your generosity.


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