Unlike money, personal belongings usually cannot be divided equally after their owner passes away. For this reason, distributing possessions like furniture, jewelry, dishes, silverware, artwork, photographs or clothing is often the most difficult challenge in settling an estate.
It helps if you state in your will, living trust, or in a separate memorandum or list who should receive what. In many states, reference within a will or living trust to such a separate document over what is technically called “tangible personal property” makes the list binding.
The separate memorandum or list can be updated without changing the will or living trust. Indeed, in Michigan, such personal property gift lists can either be in your own handwriting or typed up. It does not need to be witnessed or notarized. It should be signed and dated at the bottom of the list. You can create more than one list, but must be careful not to have lists that conflict with one another.
Often items of little monetary value have great emotional significance. This can make distribution difficult when more than one person feels attached to a particular item. The process can also become the venue for playing out old family insecurities and grievances. Everyone may revert to the relationships they had in childhood.
One my most frustrating cases involved a dispute between several siblings over boxes of their deceased mother’s personal property (that nobody would’ve wanted during her lifetime), the “crowned jewel” of which (in my opinion) was a set of ceramic chickens. These siblings proceeded to spend a great deal of money fighting over the selection of this personal property, to the point where a judge made them sit in a room together and not leave until the issues were resolved.
Many families are able to work out the distribution of personal belongings that have not been earmarked for a particular person. However, if there are even perceived problems about the distribution of personal property, it is advisable to create a tangible personal property gift list and/or provide a method for the beneficiaries to select their share of your personal property.
Here are a few methods:
- Draw lots and take turns picking items. To make this method even fairer, change the order with each round of choosing. The person who went second in the first round goes first in the second round. For instance, if there are four children, the order of choosing personal items would flow as follows: 1-2-3-4, 2-3-4-1, 3-4-1-2, etc. Alternatively, start picking based upon age – youngest to oldest – and then change the order each round thereafter.
- Use colored stickers for each person to indicate what he wants. The process may be expedited by each person putting a sticker on the items he wants. Where there’s only one sticker on an item, it will go to that person. Where there’s more than one sticker, then the family may revert to taking turns on the contested items.
- Get appraisals. Deciding on who gets what can become more difficult if some items have significantly more value than others. If families were to use the taking turn’s method of distribution, the person who gets the first pick may walk off with the only Rembrandt. It may be necessary for a few rounds for everyone to choose items of similar value, some people getting a single item while others choose several that together are worth as much as the most expensive possession. In other cases, the individual or individuals getting the most valuable items may have to pay the other family members for the value or the family members may decide that the only fair way to go is to sell the most valuable possessions and share the proceeds equally.
- Make copies. While many personal belongings are unique, in the case of photographs and videos copies can be almost as good as the original. Many family members will be as happy with a copy.
- Bring in a mediator. Where there are conflicts among family members over particular items, often times estate attorneys act as mediators, but you can also go to a trained mediator. Mediation can help the family members get at the root of the interests with the process.
In many cases, families use a combination of these methods to come up with a fair system of distribution. Sometimes, however, people’s schedules get in the way of everyone meeting in one place to make distributions or the process gets dragged out for other reasons.
The University of Minnesota Extension School has developed useful materials to help families resolve issues around distribution of personal possessions called Who Will Get Grandma’s Yellow Pie Plate? which is available both online and in a workbook format. It is a great place to start both for parents planning the distribution of their estate and for executors figuring out what to do after the fact.
For a Consumer Reports article on “How to spare your heirs a battle over your estate,” click here