Believe it or not, a lot of estate fights don’t revolve around money; they revolve around the deceased person’s possessions. A litigator once told me that one of the most frequent fights he sees centers around Mom’s jewelry. I once had a client who told me a cousin was still upset that she had inherited a cheap plastic necklace from their grandmother, who had died decades ago. A colleague also told me about a probate that dragged on for ages because everyone fought over who got their parents’ 20-year-old couch. When it comes to items with sentimental value, price can be irrelevant.
If you have no estate plan at all, i.e., no will or trust, the personal representative appointed by the court decides what happens to your stuff, with the approval of the court. If you have a will or trust, the decision is made by the executor (if it’s a will) or the trustee (if it’s a trust). In all of these cases, the heirs or beneficiaries can make their wishes known, but they have no control over what the person decides. I can think of several more cases of family rifts because the person in charge ignored the beneficiaries’ wishes when deciding what to do with the deceased person’s possessions.
So, what can be done about this?
There are general provisions that give the beneficiaries the right to take possessions, with the trustee making final decisions in the event of a dispute. But if there’s a specific item you want to go to a specific person, it’s better to state your wishes in your estate plan.
If you have a trust, you can do this in two ways. One way is to simply state it in the trust, e.g., “The Peewee Fishing Trophy displayed on the mantle goes to my eldest son.” The other is to reference a gift list, which allows you to update this list at your convenience, without having to do a formal trust amendment each time.
A lot of my clients like this second option for its flexibility, but there are a few things you need to be careful of. First, the trust will describe the document and where it’s located, so when you make updates, you need to make sure the new document fits the description and location. Otherwise, you run the risk of it not being legally enforceable. Second, you should sign and date the list each time it’s updated, so it’s clear the list is yours and not something a fraudster snuck in while you weren’t looking.
A final piece of advice: talk to your beneficiaries now about what they might want from your estate. It will be very helpful to know what items people want and whether there might be a fight over any specific possession of yours.
If you have questions or would like help including your possessions in your estate plan, including how to divide your possessions, you are welcome to email me at kaway@kawaylaw.com.
