AVOIDING ESTATE DISPUTES OVER PERSONAL ITEMS

By Kirk R. Wilson, J.D., LL.M.

Recently you may have read news reports about the dispute between Robin Williams’ widow and his children from a previous marriage with regard to his personal property. Unfortunately, this is not just a problem for the rich and famous. Sadly, it is an all-too-common problem in decedent’s estates regardless of their value. In fact, in my experience over 37 years of law practice, I have seen more family battles over tangible personal property than over the financial assets where the real value usually lies.
It seems that many people become emotionally attached to certain items belonging to their parents, grandparents or spouses. These are sometimes described as “family heirlooms” if they have been in the family for more than one generation. Or they might be items that the decedent was particularly fond of, or that were connected with an important event in the decedent’s life. The psychology of this is complicated, but the point is that these emotional attachments can lead to intra-family battles that do long term and sometimes permanent damage to the fabric of the family.
For this reason, if there are items of personal property that might become disputed objects, it makes sense to address this issue in one’s Will or living trust. However, simply providing that all of the personal items are to be divided among the children “in equal shares as they shall agree” is not going to solve the problem. Generally, a Will with such a provision also provides that if the children or other heirs cannot agree on a division, the executor has the authority to decide. This may be sufficient, but it could be problematic if the executor is one of the heirs and claims certain items that others also want.
Also, this language raises the question of what the term “equal shares” means for this purpose. Is it actual cash value, or something else? If it is intended to be measured by cash value, does this require that every item be appraised? If so, this can become very costly.
One practical solution to this problem that I have seen used many times is to have a “round-robin” where each child, or heir, takes turns selecting one item at a time until all of the personal property has been divided, with the executor or trustee serving as the referee.
Another and perhaps better alternative is to provide a list of the key items to be given to each child or other beneficiary. This list can be included in the Will, or the Will can provide that if the decedent has left a written memorandum with a list of items to be given to specific individuals, the executor and the heirs are asked to honor that list. If the list is included in the Will, it is mandatory. But if the list is created after the Will is executed and referenced in the Will, it is not legal binding here in Texas (although it would be in many other states) and instead it provides guidance to the executor as to the decedent’s wishes that hopefully the executor will follow.
In short, some forethought and sensitivity is required to diffuse potential disputes over personal items. But if there is a potential for a family feud over particular items of property, this is worth the effort.
Recently I was involved in an unfortunate battle between two sisters over their parents’ furniture, furnishings and personal effects. The Will simply provided that they were to receive equal shares. Unfortunately, the combined legal fees paid to the law firms representing these two sisters after a battle that went on for many months likely exceeded the actual value of the items in dispute. It was a sad situation and I doubt that these two sisters will ever speak to each other again. So taking some time and giving some thought to the division of one’s personal items and then providing clear directions in the Will or trust as to who is to receive these items will go a long way toward preventing this kind of a family tragedy.

[The author is a Woodlands-based estate planning attorney at the firm of O’Donnell, Ferebee, Medley & Frazer, P.C. He is licensed to practice law in Texas and California, is a board-certified probate, estate planning and trust law specialist in California, and holds an advanced law degree (LL.M.) in taxation. He can be reached at (281)875-8200. The firm’s website is www.ofmflaw.com.]

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