With many years of practice under my “belt” there are few matters that create greater dissent among family members than the division of assets at the death of a loved one. Often, the greatest battles are fought over the items of personal property left behind. They are viewed as symbols of the essence of the dearly departed and worth whatever it costs to insure that whoever is fighting the good fight, gets that item. After all the dust has settled, many of those individuals never speak to one another again. Truly unfortunate.
What follows are three ways to determine who gets what. Two of these can be incorporated into your estate planning documents with little fanfare. The third option, is the option of choice for most lawyers or those who go on-line and draft their own documents. Here are the three.
1. You Value The Item, I Decide If I Want To Buy Or Sell
This method directs one person to put a value on an item. The other person then gets to choose whether they want to buy it or sell it. When you have more than one person involved, say four people, one person can value it and the other three can have the option of buying it or selling it to the person who valued it. If more than one person wants to buy it, put their names in a hat and the winner gets to buy it.
2. Three Orders Of Priority
I would like to take credit for this, but I can’t. The concept comes from something I learned years ago and cannot credit the author, for I don’t know who it was. Here is how it goes.
Upon my death, I direct that my tangible personal property(TPP) shall be distributed among (names or class of individuals identified here) in the following manner:
First, according to my express wishes as written in my Will or Trust. If my wishes are not known, then,
Second, I direct my tangible personal property (TPP)be distributed as they can agree among themselves, then,
Third, if they cannot agree among themselves upon the distribution of any or all of my tangible personal property, I direct them to place their names in a hat and draw those names from that hat. The first name to be drawn shall be the first person to choose items(TPP), the second person shall select next, and so forth in the same sequence as the names were drawn from the hat. Value shall be disregarded in making those choices and sets of items shall be considered a single item. Items shall be selected in that manner until all of the items have been selected or everyone has exhausted their choices. The balance of the items not selected shall be sold and the proceeds divided equally among my (children, nieces, nephews, or other group identified above).
3. Let The Judge Decide
This is my personal favorite. If the parties cannot decide who gets an item, file a petition or motion with the court and set it for hearing. Let everyone appear and provide evidence at that hearing and make their best argument why they should be entitled to get the item. The reason this is my favorite is that the attorneys get all the money from the estate and devisees/heirs/beneficiaries. It is the full employment option for the legal profession. This is a great money maker for the attorneys. The truth is that this fosters conflict and unlike the other two options, drags out the process. This is the real reason why people say they “want to avoid probate.” Folks, it is not the PROBATE PROCESS that is at fault – it is the PEOPLE!
There you have it. Choose one.