Common Mistakes in Estate Plans: Division of Personal Effects

Occasionally, when I visit with clients about how they would like to manage the distribution of their personal effects (e.g., jewelry, furniture, firearms, etc.) upon their deaths, they jokingly say something like "What do I care? I'll be dead!" or "Aw, I'll just let 'em fight it out."

Although the humor in such comments is certainly not lost on me, I refuse to allow the issue to die there. Why? Because estate litigation is more often than not the result of exactly that lack of attention to detail. Children fight much more passionately over the little things than over large amounts of money. That's just the way it is and I imagine that most estate planning attorneys can give you at least a handful of examples of families torn apart by - what appears to us to be ridiculously insignificant - items of property. The problem most often arises when, in a will or a trust document, the division of these personal effects is determined solely by a statement such as "divided equally among my heirs/beneficiaries/children" or some other variation on that theme.

The problem with this language is that the meaning of the word "equal," without further clarification, is really determined through eye of the beholder. What appears equal to one person may seem horribly unfair to another. As a responsible testator, you must make it as easy as possible for your beneficiaries to determine what should go to whom. The way to do this is to create a memorandum (a list) of personal property that clearly designates to whom each piece of property should be given.

There should also be language in the will or trust that explains who has the final decision-making authority in the event that a disagreement arises. That decision-making authority should be absolute in order to avoid a court fight.

Remember, estate planning is not easy. But there's not much out there worth doing that is easy. Your loved ones will thank you for your efforts and more importantly, the legacy you leave them won't be a legacy of contention and shattered relationships!


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