I'll be the first to admit that we estate planning attorneys don't usually focus on the disposition of a client's tangible personal property--"TPP" or "stuff"--when preparing a will. Usually we focus more on assets like real property, financial accounts, and things like that. We also focus on minimizing or eliminating estate tax and on making sure as much gets to the client's named beneficiaries as efficiently as possible when the time comes. There are a few reasons why TPP is often neglected:
First, the monetary value of such property is usually not terribly significant.
Second, clients often don't have particularly strong feelings one way or the other about their TPP, and so to force them to focus on deciding who gets all of it could derail the estate planning process, which is perilous for the client.
Third, to provide an itemized list of TPP dispositions in a will means that if the clients changes his or her mind at any time, either a new will needs to be created or, at a minimum, a codicil (amendment) to the will needs to be made--both of which cost the client time and money.
Finally, we lawyers are able to address the issue by including a provision in the will that essentially states that the client may leave behind a list of items of TPP and to whom the items should be given, and that the client wishes for the executor to honor any such list. As for any TPP not disposed of by such a list, the TPP should be divided among, for example, the client's children as they may agree, and if there are any disagreements then the executor has sole authority to resolve the issue however he or she sees fit. In some states, such as NJ, any such list--as long as it's referred to in the will--is legally binding. In other states, like NY, such a list, even if mentioned in the will, is not legally binding. However, most people pick executors that they trust, and so they trust that the executor will honor any such list the client leaves behind.
What I usually do is advise my clients that they may spell out and dispose of as much or as little TPP in their wills as they wish, but that any changes can only be effectively made by redoing the will. I usually suggest that they list in the will any items that they definitely want to go to a certain person, and about which they are very unlikely to change their mind. For example, perhaps a mother wants to make sure her daughter inherits the mother's wedding dress. Something like that I suggest stating explicitly in the will. The pots and pans from Target, probably not. But hey, you never know.
The problem is that taking this approach to the distribution of TPP presumes that, for example, the deceased person's children will truly agree on how the TPP should be divided up. Often, they do not. It also presumes the client will get around to composing such a list (again, often they do not). And so are planted the seeds of family conflict. What I hope to do below is offer some tips for avoiding or minimizing such conflict.
Let's use the following scenario to illustrate the tips that will follow: Mom dies, leaving Dad as a surviving spouse, and A, B, and C as the surviving adult children. A, B, and C are all married. A and B have grown children of their own, and C has no children. Mom's will had a provision like the one mentioned above, leaving TPP to be divided as her children agree, and the executor (in this case, Dad) has the sole authority to resolve any conflict.
Tip #1: A, B, and C's spouses and children should stay in the background. Someone once said "If she wasn't your mama, stay out of the drama." The period after a family member dies is often a highly emotional time for the surviving family, and intrusion by spouses and less-closely-related relatives can lead to hard feelings. Also, in the absence of instruction from Mom to the contrary, A and B should not feel entitled to more TPP just because they have children.
Tip #2: If items of potentially high monetary value are involved, the executor can hire an appraiser to assign a value to the items, which can help the executor distribute the TPP as fairly as possible.
Tip #3: The executor can ask each child to write a "wish list" of which items of TPP they want most. Such lists don't mean the children will get everything they wish for, but it can guide the executor in deciding who gets what.
Tip #4: When conflicts over TPP remain, the executor can choose a method--preferably with the children's consent, but it's not required--by which to resolve the conflicts, such as a coin toss, drawing straws, or even having an auction where each sibling is given a certain amount of real or imaginary money to use to bid on the items he or she wants. Better yet, an estate planning attorney should discuss with the client what method they prefer be used, and that method should be mentioned in the will.
Tip #5: None of the children should appeal to the executor privately, trying to campaign or "angle" for the items of TPP that they want. All discussions about TPP should be had with everyone present, or via email with everyone cc'd. It is important that each sibling commit to this, so as to avoid suspicions that conversations are taking place behind anyone's back.
Tip #6: Everyone should keep in mind that stuff is just stuff. An item of priceless sentimental value to sibling B now, for example, might end up his or her child's yard sale at some point down the road. In the meantime, is that item of stuff really worth the possibility of permanently damaging family relationships?
Tip #7: No items of TPP should be removed from the deceased person's home before it is officially decided who will get the item. Further, to the extent anyone removed items from the house either prior to or after the deceased person's death, those items should be returned.
Tip #8: The estate planning attorney should discuss with the client, and include in the will, what the client's feelings are if, as is likely, the distributions of TPP are disproportionate in monetary value. Should a child who receives less valuable TPP get additional cash from the estate, or should the disparity be ignored?
Tip #9: When it comes to items of sentimental value--which is where most conflict is borne--the executor, when possible, can reproduce the items so that each child gets a copy. This can be a very useful approach for handling correspondence, photographs, film reels or videotapes, etc.
Tip #10: Even if the client doesn't want to leave a list of TPP, or discuss his or her wishes regarding TPP with their named executor and/or their family, an estate planning attorney should encourage the client to at least write a letter sharing his or her thoughts about the distribution of TPP. It should be addressed to the relevant surviving family members, and can even be retained by the attorney until such time as it is needed if the client doesn't want to distribute the letter during his or her lifetime.
There's no fool-proof way to avoid conflict during the settling of a person's estate. Many estates are settled without a hitch, but some of the time there is going to be at least minor conflict, even if only over items of purely sentimental value. Hopefully the above tips will help you if and when you find yourself in the situation of settling the estate of a loved one.
Until next time, be well.