Allocating your personal possessions can be one of the most difficult tasks when creating an estate plan. To avoid family feuds after you are gone, it is important to have a plan and make your wishes clear.
When passing on possessions to your heirs, savings and investments are easy to divide up, since they can be turned into cash. Real estate can also be turned into cash or co-owners can share it. The most difficult items to divvy up are personal possessions—silverware, dishes, artwork, furniture, tools, jewelry — items that are unique and don’t have a set resale value. In legal speak, these are known as “tangible personal property” and can become the focus of family fights. Often one or more children claim that a parent had promised them a particular item. Things may disappear from a house or an apartment shortly before or after a parent’s death, or a child may claim that her 90-year-old somewhat-demented mother “gave” her a cherished diamond ring during life. These types of situations can create great suspicion and irrevocably split families. Siblings may stop communicating due to their anger and distrust.
Clarity about one’s wishes can go a long way toward avoiding these difficulties. Also, it’s important that the personal representative of an estate (also called an executor) secure the deceased person’s residence as soon as possible after death to make sure items don’t disappear. Here are a few steps you or the personal representative of your estate can take to make sure splitting up your stuff doesn’t split up your family:
- List the most important or valuable items in your will. While your will could get very long if you tried to list all of your possessions, you may have a few family heirlooms or valuable artworks that you want to stay in the family. It may be easier for all concerned if you say who should get what. But talk with your children or other family members first to determine who values which items most.
- Direct that certain items be sold. If you have one or more possessions that have much greater value than others, it can be difficult to make your distributions equal. It may make more sense to sell the items of greatest value and distribute the proceeds. For example, in a family whose parents were able to save one painting by a famous artist when they fled Europe during the Holocaust, the children sold the painting and split the proceeds equally, since it would not have been fair for any one of them to have received the painting and none had the resources to buy out the other two. The painting was auctioned at Christie’s and they were all quite happy with the results.
- Write a memorandum. You can write a list of who should receive what item. If your will references the list, it will be enforceable. Be careful about how you describe each item so that there is no confusion. Unlike your will, this list can be as long as you like, and you can change it without having to go back and redo your will. Send a copy to your lawyer as well as any updates as they occur to ensure the list doesn’t get lost or ignored when the time comes.
- Give everything away now. Well, perhaps not everything, but the more you disburse during life, the less that will have to be dealt with at death. When you make gifts, make sure that everyone knows about it so that the person receiving the gift is not suspected of having pilfered your jewelry box, for instance. There may be items that you would like to give away, but still want in your house. This is especially true of artwork and furniture. As long as the new owner is agreeable, you can keep these items around. You might want to tape a note to the back or underside explaining that the Rembrandt, for instance, belongs to your daughter, Jane. (Of course, if it is a Rembrandt, you will need to file a gift tax return and a transfer document.) Be aware that for highly-appreciated property, for tax reasons, it may be better not to make gifts during life because they’ll lose the step-up in basis. So check with your estate planning attorney or tax accountant first.
- Get an appraisal. For the tax reasons referenced above and to guide you in deciding who should get what, it can be useful to know the monetary value of the items you’re giving away, whether during life or at death. This can also be very important for your personal representative and for your heirs in making their decisions.
- Use a lottery. If you do not made choices regarding your estate plan, your personal representative may want to set up a lottery system for distributing the tangible assets. The representative can put names or numbers into a hat and someone can draw them out to determine the order in which the family members or other heirs will choose items. In order to inform the process, the personal representative should create a list of the most valuable items, including their appraisal value if one has been obtained. If everyone is in the same location at the same time, they can simply take turns. If that’s not possible, the personal representative can add pictures to the list to help identify the items and the beneficiaries can choose online, informing the personal representative of their choices as their turns come up. The order of who chooses can change each round, whether reversing or moving along progressively. Here’s the distinction between these two alternatives:
Reversing: 1,2,3,4,5; 5,4,3,2,1; 1,2,3,4,5
Progressive: 1,2,3,4,5; 2,3,4,5,1; 3,4,5,1,2
- Bidding. A more complicated structure would be to provide all of the heirs the same number of tokens or points that they can use to bid on the various items. For instance, someone who really wants one painting or photo album more than anything else could put all the tokens on that. Someone who doesn’t care as much would bid fewer tokens. The complication in this approach is what happens after an item is gone. Certainly, anyone who used up his or her tokens “winning” an item in the first round is out, but can those who lost reallocate their tokens to other items? A variation on this theme would be for everyone to rank the items by preference. When there’s no competition, everyone who chose an item first would get that one. When more than one person chose an item as their first choice, they might draw straws, with those losing getting to choose again.
Online systems like FairSplit.com also provide a way to create a private family account, list the tangible personal property and divide things using systems similar to those described above. When meeting or traveling to divide isn’t possible or ideal, an online option like this may help.
The more you decide who gets what rather than leaving the decisions to your family, the less likely the distribution process will create family strife.
To get started on your estate plan or elder law planning, contact the Laiderman Law Firm.