Options to Divide My Estate and Personal Property

Apr 15, 2016

Do you have a grandmother (or perhaps I am speaking about you) who has taped names of family members on the bottom of vases, silver items or pieces of furniture with the intent that the named individuals receive these items at her death?

property lawA common concern of clients is the disposition of their tangible personal property (clothing, jewelry, furniture, china, crystal, and silver, etc.). Clients often announce to me during a first conference that they have marked the underside of certain items in their home with the names of the people they want to receive them.

My grandmother did just that. Although her Will directed that all of her tangible items be divided equally among her four children, she hoped her “directions by masking tape” would guide the process. Not surprisingly, handwritten names on tape on items do not a Will make. Because of what my grandmother’s Will said, the Clerk of Court required that each of my mother, aunts, and uncle sign a receipt acknowledging receipt of one-fourth in value of the tangible items.

As it turned out, my mother and her siblings divided the items in my grandmother’s home, taking into account the pieces of tape on the bottom of vases, figurines, and furniture. The value of the items received by each of them was not equal; nevertheless, each of the four acknowledged to the Clerk that he or she was satisfied that they had received a one-fourth share.

You may be asking, what other options to I have to direct the division of my tangible personal property?

In the Executor’s discretion:

In the event the group of intended beneficiaries of tangible personal property (“to my four children, in equal shares”) may not be able to agree to division of the property, a Will can direct that tangible personal property is given to the Executor to divide among the named beneficiaries in the Executor’s discretion. If such a direction is given, the Executor must not only be fair-minded, but also strong in temperament. A conflict can arise if the Executor is also among the group of beneficiaries.

A round robin division and sale:

Alternatively, the Executor can be given the tangible personal property and can be directed to allow the beneficiaries to select items on a rotational basis until all desired items have been received.  The Executor can then be directed to sell the remaining tangible personal property and to add the proceeds of sale to the residuary estate (real estate, stocks, bonds and cash) to distribute among the beneficiaries named in that section of the Will. (If these beneficiaries are not the same, it is likely that the selections made will encompass all the tangible personal property!)

It is important to consider the type of personal property in an estate (collectibles, items of sentimental value, musical instruments, etc.) and the beneficiaries named to receive these items. The beneficiaries’ desires and their ability to make decisions together should guide you and your attorney in drafting the portion of your Will which disposes of this property.

Practice advice from experience:

My current favorite wording for disposition of tangible personal property includes giving such property to the Executor to distribute in his or her discretion among the beneficiaries equitably, not necessarily equally, taking into account any desires regarding the property expressed by the testator/testatrix during his or her lifetime or by the said beneficiaries in writing after his or her death. I also instruct my clients regarding how to make a handwritten codicil to their Wills in order to distribute certain tangible items, and can tell you about that as well…in a later blog post.

Through our collective experience, the Trust and Estates Practice Group members at McGuire, Wood & Bissette, PA are able to advise clients on the best ways to distribute all assets, including those beloved tangible personal property items.  This collective experience and practical advice is Smart Legal.

 

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