What Happened to Mom’s Dresser?

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.

Don’t Believe Everything You Hear

Recently, I had the opportunity to visit two separate banks on behalf of a client of mine and on behalf of an individual for whom I am the guardian. With very few exceptions, I am always struck by one thing when I visit a bank–how little the staff of the various banks know about the law but how adamant they are in their legal advice.

Clients will often come to me, and say something such as “The guy/gal at the bank said ….” What follows is almost inevitably some statement about something I did that was not done correctly and how the bank needs it to be done differently. Without exception, the statement the bank staff made is incorrect, but having experienced many such statements firsthand, I could see how a person with no legal background would believe what the bank personnel is saying to them.

For some reason–I guess because they typically have big buildings that hold lots of money–people put a tremendous amount of credence in what bank personnel say. Now, I don’t mean to insult the staff of banks. I believe they are hardworking people. I just take exception to their dispensing legal advice to my clients. I don’t dispense banking advice to clients. In fact, if a client asks me what they should do with their money, my first and only response is, “You should consult with a financial advisor, I don’t give that type of advice.”

Admitting that you don’t know something isn’t a sign of being dumb. In fact, I think it’s a sign of being educated and informed and knowing your limitations. There is a great deal that I don’t know. In fact, the things I don’t know far outweigh the things I do know, and I’m happy to admit that fact. (I do know quite a bit about elder law for the record.)

When I went to the bank last week for my ward (the person for whom I am a guardian), I asked the bank if I could get into her safe deposit box. I am her guardian, I have been for a year. I have the key to her safe deposit box. The bank has my paperwork as guardian.

The bank officer said I would have to present a judgment that specifically allowed me to get into her safe deposit box. In fact, while I was sitting there, he called the bank’s legal department, and apparently, this is what they told him, though to be fair he kind of prompted them along that train of thought with his leading question, “Does he need to present a judgment that specifically allows him to get into the box?”

This is untrue. As the guardian, I am, for all intents and purposes, the ward. I have complete access to her assets. Unless the judgment appointing me specifically says I cannot do something, which it doesn’t, I can do everything she can do. That’s what being a guardian is. I am a surrogate or substitute for the ward.

The other bank I dealt with was in reference to a client and a trust that I created for the client’s now-deceased husband. The trust is in his Will and is for the wife’s, my client’s, benefit. My client is the trustee of the trust. My client has access to the principal and income of the trust. Because the trust is in the now-deceased husband’s Will, the trust is irrevocable.

The bank officer told me that the trust must be revocable, which to him meant that the wife had access to the money in the trust. I told him that the trust is irrevocable but the wife does have access to the money in the trust, to which he replied “Oh, then the trust is revocable, good.”

I said, “No, the trust is irrevocable as it is in the Will of an individual who is deceased, but the wife has access to the money in the trust and she is the trustee,” to which he said “Oh, good, so the trust is revocable.”

I asked to speak to the legal department, but for some reason, he thought he was handling the matter just fine. My point is, just because someone who supposedly has authority is telling you something, don’t believe them. In the end, I’m sure all of these issues will be resolved, but to the less informed, it would appear as if something needs to be corrected when the only thing that needs to be corrected is the banks’ lack of knowledge.