What to do with Mom’s China?
Written by Jim Worthington on December 16, 2018
Most wills have special provisions covering what estate and trust lawyers call tangible personal property. The best way to describe it is that it includes anything that is not permanently affixed to real estate and that can be touched. This isn’t a precise legal definition because stocks held in certificate form can be touched but would be considered intangible personal property. So, it may be best to provide some examples. Tangible personal property includes:
- Appliances like washers and dryers that aren’t built in to the house;
- Cars and trucks;
- Furniture;
- Silver and china;
- Jewelry; and
- General home furnishings.
Many disputes among family members arise over these items. A parent may have had a particularly valuable—whether sentimental or monetary—ring that simply cannot be divided among the surviving children.
What should the family do in a case like that? Two options come immediately to mind. One is to mandate its sale in the Will or Trust. The advantages of this tactic include its simplicity and that it raises cash that may be helpful to the estate later. The disadvantage is that the item will probably no longer be owned by the family, which may be a sad result if the item has sentimental value.
The second option is for the family members to draw numbers from a bowl to pick the order in which they select items. It may be best to have a neutral person oversee the random drawing. One disadvantage to this is that if one person selects items with a much larger monetary value than the other persons select, there will need to be a way to equalize or make up the value to those other persons. This may be difficult if the tangible personal property beneficiaries are different than the remainder beneficiaries. One example of different beneficiaries is where the children inherit the tangible personal property outright but one or more of their remainder interests are in trust.
The personal representative, trustee, or other person in charge of administering the estate, is responsible for deciding the method to use unless the Will or Trust specifies it. There are many different ways to effect a fair division and an experienced estate and trust lawyer will be able to discuss their advantages and disadvantages.
Sometimes, the issue is not competing claims to the tangible personal property. It is that no one wants certain items. But, since they were mom and dad’s prized possessions, everyone assumes they must be quite valuable. The truth, however, is that very few such items have value to collectors. The old adage that a new car’s value drops as soon as it leaves the dealer’s lot is even more true when applied to things like brown furniture, rugs, and the like. The price one’s parents paid for an item, even for a very recent purchase, bears little relationship to its value at an estate sale.
One of the advantages of working with an experienced estate and trust lawyer is that he or she can help deal with these tough issues. There are ways to anticipate and avoid problems at the planning stage. And, during the administration stage, the lawyer can help set reasonable expectations and avoid unnecessary conflict.