In my practice, I have drafted over ten thousand last wills and testaments for clients. I have assisted hundreds of executors administer the estates of individuals who have passed on. Based upon my experience, I can say with certainty that one asset class causes more issues than any other asset class with respect to the administration of a decedent’s estate—tangible personal property.
It’s ironic that personal property would be the source of so many issues given its low, to no, monetary value, but I can tell you that personal property is the property that causes the most issues.
Personal property is typically comprised of items such as jewelry, furniture, paintings, and collections (stamp collections, baseball card collections). Typically, items of personal property have very little monetary value.
Personal property also has no title. In other words, a car has a title, so it is clear who owns the car. A house has a deed, so it is clear who owns the house. But personal property has no title. If someone runs off with the decedent’s jewelry, it is difficult to prove that the person took a piece of the decedent’s jewelry because there is no title to the jewelry. It is also difficult to value the jewelry with any certainty, unless you sell the jewelry.
Despite what some people may believe, personal property (in the vast majority of cases) has little to no monetary value. Old jewelry typically is not worth that much. Furniture is almost always of little to no value. Collections typically have far less value than the collector (now deceased) believed it had.
Yet, in administering an estate, I have seen personal property be an issue from all angles. I have seen beneficiaries claim that the executor did not properly distribute the personal property. Beneficiaries will claim that items of personal property (a painting, a piece of jewelry, etc.) are missing. Beneficiaries will claim that the executor sold items of personal property that they wanted.
I have seen executors and beneficiaries claim that another family member stole items of personal property after the person died.
I have seen beneficiaries give an executor a difficult time because the executor wants the beneficiaries to take the personal property from the decedent’s house, and the beneficiary doesn’t want to be bothered retrieving the property (but will assuredly complain if the executor disposes of the property).
It’s almost comical. Basically, the concept for the disgruntled executor/beneficiary seems to be, I will take whatever stance necessary on the personal property that allows me to cause difficulty for the executor or the other beneficiaries, as the case may be.
Personal property lends itself to arguments. As stated, it has no title and its monetary value is debatable, though, frequently, negligible. And, even if you (as the executor or beneficiary who is being accused of mishandling or misappropriating the item of personal property) prove that the item had little or no value, the disgruntled accuser will claim that the personal property item had irreplaceable sentimental value: “That was mom’s dresser. I wanted that dresser to remind me of mom.”
It’s a no-win situation. Unfortunately (or fortunately, depending upon which side of the argument you are on), it’s frequently a no-win situation for the accuser.
Courts see fights over personal property far more than I see such issues. If the court held a trial every time someone claims the executor mishandled the distribution of mom’s dresser, the court would be spending every day of the week deciding such issues.
There really isn’t an absolute solution for these issues, because in most cases, the accuser is simply making an accusation in order to cause problems, and when people want to cause problems, they can. It has, however, caused me to re-think the manner in which I draft clients’ Wills in order to make clear that the executor has absolute discretion as to the distribution of this type of property.
I would imagine that I will hear my clients say “My children won’t do that. They get along.” But you never know, so you should prepare for the worst and hope for the best.