FEBRUARY 17, 2021
When I help settle an estate the most challenging task is mediating what is the “best” way to divide the jewelry, art, furniture and other tangible personal property of the deceased among their heirs. People behave irrationally when they feel that they were promised something under the will. They already feel that the item is theirs. This is compounded by the friction between and among family members that existed during the decedent’s lifetime.
So, what is the best way to divide your assets? The fact is that there is no “best” way to divide assets, but there are some things you can do, or refrain from doing, to help avoid a family fight.
First, do not tell someone that you will give them something in your will. If you want to give them something, give it to them today; otherwise, if you sell or give the item away to someone else, or even if it gets lost, the person you promised the item to will be disappointed. In the worst case, they may even be mad enough to sue the estate for the value of the item, especially when they have done work for you before your death with the expectation that they will get the item in return. I have had one client who promised a family necklace to a daughter who later forgot and gave it to a daughter-in-law. It was not so much that the mother had given the necklace away that hurt, it was that she had forgotten that she had promised it to her daughter. Fortunately, the daughter-in-law was gracious enough to give the necklace to her sister-in-law, and bad feelings where averted, but it could have been a very bad situation.
Second, ask your heirs if they want it. Tastes change from generation to generation and things like formal china and silver sets for 28 is not something a 25-year-old single grandchild living in a studio apartment in LA is going to be able to take, even if they wanted it. Sometimes children and other heirs are very forthright in expressing their interest in certain things. Others may feel awkward about coming out and asking. My recommendation is to ask them what they would like. Sometimes they will surprise you with what they would like to have as a remembrance of you. Conversely, if you are gifting the item to another, or to charity, tell those who want it that they are not getting it and why.
Third, write out how you want to have things divided after your death, but keep it confidential. If you have specific things you wish to go to specific people, write it down, and put it with your original will. Such a memorandum may not always be as binding as a trust, but it has great moral, and some legal force. You can also provide a method, or person, to break any stalemates. If there is no resolution, you can instruct that the items be sold.
Fourth, if you have artwork or collectibles, consider appointing someone who is knowledgeable about the items as a special personal representative to handle the division and possible sale of the collection. Your heirs probably do not have the same experience and knowledge you have about your collection, and too often heirs become overwhelmed by the sheer volume of stuff and end up selling, or giving away, very valuable items for a song.
Fifth, if you have things of local, social or historical interest, donate them to a local historical society. Many times, people keep the newsletters and other materials of the clubs and papers from their schools that are of not monetary value, but are not something that the local historical society or school alumni association has, and they value the item even if no one else does. I once had a client who came across a catalog of one of the first coin auctions held in Boston in the 1840s. It had notes as to who bought what, and for how much, written on the margins. According to an ephemera expert, it was not worth anything, but a local research library that had a collection of auction catalogs going back into the 19th century was delighted to get the piece.
Finally, try to organize what you have. By this, I mean go through and inventory what you own as well as you can. Tell the history of the items, where you acquired it, with whom and why. Further, tell what items you consider good, which are better, and which are the best, and why. Do not be afraid of getting some professional help. I have at times worked with local colleges to get help cataloging the papers of a writer or composer and allowing them to use the materials in their research. Getting access to this expertise is not always easy, but it is possible.
There are a number of online services that provide a way to designate assets, though I have not tried any. I do feel, however, that these suggestions are relevant whether you use one of those services or not. These steps do not guarantee a conflict-free settlement of your estate, as there are some people who just want to have a fight, no matter what the excuse. In most cases, these suggestions, will help to minimize bad feelings all around.
Matthew Erskine is managing partner of Erskine & Erskine in Worcester, Mass., which provides legal and fiduciary services for unique assets.