"We seldom get into trouble when we speak softly. It is only when we raise our voices that the sparks fly and tiny molehills become great mountains of contention."
- - Gordon B. Hinckley
June 5, 2014
Dividing the Decedent's Possessions
by Cyndie Swindlehurst

Question:

When my great aunt died recently there were a number of family fights over her few material possessions.† My own mother is over 90 and has a large home†and many possessions. She does not want to discuss†anything to do with her own death†and her will just states that her children will divide her personal possessions fairly and equally.

Any suggestions on how we do that?

Answer:

Dividing a decedentís personal possessions is rarely as simple as looking at a houseful of goods and deciding who gets what.

Indeed, the nicest families can go to pieces. Every old insecurity, argument, and skeleton may be dredged up and trotted out.

And people donít just fight over money and goods because they are greedy, selfish or entitled. Arguments also arise from hurt feelings and unmet expectations. A will can seem like a message from the grave about what the deceased really thought about you, and the disappointment of being cut out or unrecognized can sting.

The size of an estate does not determine whether the distribution is acrimonious or peaceful. Small estates can spawn battles as readily as large estates, as your extended family recently discovered. People attach sentimental value to items with no actual value, such as a cookie jar or measuring cups. And it is as easy to fight over Grandmaís favorite teapot as it is to fight over Grandmaís Ferrari.

Legal issues can complicate the distribution of personal possessions. State law may require you to go through probate. The estate may have debts that require you to sell valuable possessions. Taxes must be paid, both on the estate itself if it exceeds a certain value, and on possessions worth more than a certain amount. A sibling who provided care for your mother might be entitled to payment for his services.

Perhaps gifts were made with the understanding that they would count against the recipientís inheritance. If your mother gave her silver to your sister ten years ago with the understanding that it would be counted against your sisterís inheritance, the value of the silver should be considered when dividing your sisterís portion.

But problems can arise. If your mother paid your sonís college tuition ďout of your share,Ē do you get nothing if the amount she paid was more than your share is now worth?

Further, some property does not pass through the will at all. Jointly owned real property and financial accounts often pass solely to the surviving owner. Retirement accounts and insurance policies are paid to the beneficiary named on the account, no matter what the decedentís will says.

If a retirement account names only one sibling as beneficiary, it could affect the other siblingsí notions of what makes a ďfairĒ distribution of the decedentís personal possessions, even though the account is separate from the will.

These and other issues can threaten to overwhelm the goodwill among siblings, especially if one sibling (or one siblingís spouse) appears to be taking advantage of the process.

So, what to do? I have five suggestions.

First, be considerate of your motherís feelings now. When you visit with her, talk about the past, her memories, her flower garden or whatever else she likes to talk about. Donít make her feel as if you are only interested in her money or possessions.

If the topic of her will causes her distress and she does not want to discuss it, donít press her. These are her possessions and she has every right to do with them as she wishes. That includes leaving you and your siblings to work it out after her death.

That said, I would absolutely encourage her to see her attorney to update her will. You might phrase it as, ďEstate law, especially tax law, has changed a lot since your will was made in 1986. I think you should meet with your attorney to make sure your will still does what you and Dad wanted it to do.Ē

You might even have your own will updated, and then recommend she do the same based on your experience. If you would like help talking to her about these and other issues related to her health, safety and care, I suggest you find a book or other resource about discussing such things with the elderly.

Second, remember that you donít know what the will says or what property is in the estate until your mother passes away. There could be assets you didnít know existed. There could be debts you were not aware of. The jewelry, furs and antiques could all be fake. Someone unexpected could be the executor.

There could be heirs and beneficiaries youíve never met. Your siblings might come forward with promises your mother allegedly made about what items they were supposed to get. Your siblings may show up with trailers and start loading up the house during the funeral service. The will itself could be totally different from what you think, leaving everything to the Daughters of the American Revolution.

In other words, although itís good to consider these issues now, donít get ahead of yourself. Plenty has to happen before you actually have to divide the household goods.

Third, consider hiring an attorney or other professional to administer the estate, especially if the estate is complicated or if there is mistrust among your siblings. It will be more expensive, but if spending the money will get the process done correctly and relatively quickly with minimal family strife, it will be worth it.

If you cannot hire someone to administer the estate, you should at least find an attorney or other professional who can answer your questions as they arise. Accounting errors and inaccurate appraisals can cause as many family arguments as hurt feelings and jealousy.

Fourth ó and this was your actual question ó there are a number of ways to divide the decedentís personal possessions. I will describe briefly two methods that are generally thought to be simple and transparent, and which ensure that everyone gets at least something that he wants from the estate.

Method One: Each sibling draws a number out of a hat. Then, going in order of the numbers drawn, each sibling chooses an item from the house. (What counts as a single item, i.e. the entire rosebud china set, will have to be decided in advance.) You can either keep the same numbers or draw a new order for each round. Continue until no one wants anything else in the house. This sounds ridiculously simple, but it is fair and transparent.

Method Two: Have a family auction. Each sibling gets an equal sum of pretend ďmoneyĒ that represents his share of the value of the household goods. Then, you all bid on the household goods. If you really want the piano, you can bid high for it. If you donít care about the tools, bid nothing. There are several variations of this method, and an attorney can help you adapt it to your familyís needs.

Not all items need be part of the official process. Gifts may be returned to the givers, photos can be given to their subjects, and things of little value that only one person wants can be handed over. Family photos and documents can be professionally duplicated and copies given to each sibling.

Unsentimental families might simply sell everything of value and split the proceeds.

Fifth, the most important thing you can do to avoid a family war when your mother passes away is to strengthen your family relationships now. In the end, the process of dividing your motherís possessions will go smoothly or badly depending on how you and your siblings behave. If you treat each other with respect and look out for each other, things will go well.

So pick up the phone and call your siblings. Invite them to visit. Donít talk about the will or your motherís possessions. Talk about things that interest them and things you have in common. Fortify good relationships and reconstruct those that have flagged.

Do you have a quandary, conundrum, or sticky situation in your life? Click this button to drop Cyndie a line, and sheíll be happy to answer your question in a future column. Any topic is welcome!


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About Cyndie Swindlehurst

Cynthia Munk Swindlehurst spent her childhood in New Hampshire and her adolescence in San Diego. She served a mission in Manaus Brazil. She graduated from Brigham Young University with a degree in English and from Duke University with a law degree.

She practiced law until her first child was born. She enjoys reading, tap dancing, and discussing current events. She and her husband live in Greensboro, North Carolina with their two sons.

Cyndie serves as the Sunbeams teacher in her ward.

Visit Cyndie at Dear Cyndie
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