It may or may not be a surprise, but one of the more common points of connection in estates deals with the distribution of personal property. Whether as a result of sentimental value or actual financial value, items of personal property can cause serious disagreements between heirs. Many people think that either their property doesn’t have any value and no one will want it, or they’ve already made it clear who is supposed to get what. However, leaving these sorts of decisions up to the heirs to sort out for themselves can create volatile situations that could be easily avoided. Many clients want to let their heirs have some ability to discuss and decide amongst themselves how to divide personal property, and in order to enable that, I often recommend clients do some combination of the following:
1) Empower the Executor or Trustee to sell disputed personal property in the absence of any agreement between the heirs. This will allow the executor to reduce disputed property to something that is distributable – namely, cash. It can often serve to motivate heirs to reach an understanding as well – knowing that the lack of agreement will result in loss for both.
2) Prepare a handwritten memorandum that identifies the items of personal property that you want to go to specific individuals or entities. Handwritings like these, if executed prior to or at the same time as your Last Will are legally enforceable. However, even if they are executed at a later date, the impact of seeing a loved one’s desires in their handwriting can often work well to limit or discourage disagreements. Additionally, changes to these handwritings can be made by simply tearing up the old memorandum and drafting a new one.
3) Identify items that are likely to be desired and preempt any possible disagreement by listing those items specifically in your Last Will or Trust and stating how they are to be distributed. Including them in those documents will create the legal presumption that the distribution should be as you’ve outlined, and make it difficult for anyone with feelings otherwise to challenge. However, any changes that you want to make will need to be done through a codicil to your will or amendment to your trust: lining through entries can cause serious problems for the overall enforceability of your documents.