Give It Away or Name It! Family Fights Avoided.



Pearls of Wisdom

“The pearl only weighs the oyster down.”
Marty Rubin

Here are some tips that can help you avoid battles in probate court.

  1. Clearly Identify Who Gets The Gift

First, things which have personal significance to survivors need to be identified and either given away while the owner is still alive or designated without ambiguity for distribution at the death of the donor.

This can be done in your Will, Trust or in a separate list which is incorporated by reference into the Will or Trust. In our state, a person has the ability to reference a list of tangible personal property that can be signed and dated anytime before or after the Will is executed as long as it is referenced in the Will. This gives the testator the ability to clearly identify the item and who gets that item at the death of the testator. Often the items of personal significance are fought over with the greatest vigor. Frequently, it is not the item, but the control it represents, that individual’s wage battle to win. And the financial cost and mental capital that people are spending to pursue their objectives.

I often recount the story of the mother who had three children, Sarah, the oldest daughter, Cathy, the youngest daughter and Bill, her middle child. Mom always had a china cat on the sill above her kitchen sink.  It didn’t have significant monetary value. In fact, it would be lucky to bring $2 at a garage sale. But it had been passed down two generations from mother to daughter and had particular significance associated with it because of the history of that cat. Sarah was admiring it when she was very young. At that time her mother told her that, when she died, she would see that Sarah got that cat.  

Many years later when mom was very old, she was in the kitchen cleaning up after Thanksgiving dinner when Cathy asked about the china cat. By the end of the conversation, Cathy was promised the cat by her mom as she had forgotten the earlier conversation with Sarah. About one year later, mom passed away. Bill was in the house cleaning and organizing when Sarah called to see if anyone was there. He answered and she told him that she would come right over as there were some things she wanted to get including the china cat on the kitchen window sill. Bill immediately told her that it wasn’t there and that Cathy had retrieved it earlier in the day. He said he didn’t know anything about it and didn’t see any problem with her taking it. At that, Sarah voiced her dissatisfaction and said that, “That isn’t right, mom gave it to me!” Bill said, “Look, I don’t want to get in the middle. Talk to Cathy to see if you can work it out.”

Cathy heard the phone ring and answered to hear Sarah tell her that she heard that Cathy had been to mom’s house and, by the way, Bill told her that the china cat was no longer in the kitchen. “Do you know what happened to it?” she asked. Cathy explained that she took was her mother had promised to her and that that conversation took place on Thanksgiving when they were all in the kitchen cleaning up after dinner. Sarah said, I didn’t hear anything of the sort. And, anyway, her mom promised it to her before Cathy was even born. From there words were flowing freely and the tone of the conversation went downhill until they both threatened to retain counsel to fight for the cat regardless of the cost of pursuing their objective to get the cat for themselves. The truth is that if their mother was alive, she would have been horrified to see that that cat would create the discord in evidence after her death.

       2. Give It Away While You Are Still Alive

The truth is that it takes very little to set off family conflicts if the underlying tension is already in place. Siblings have issues that remain below the surface until events bring them to the surface. So why not take steps to avoid those conflicts by giving those items away while you are still alive or clearly identifying the person who is to get those items of personal significance. How do you know what is significant? Ask the potential takers to tell you what they would like to have. If it is something that you no longer use, give it away while you are still alive. If you do this, you will be able to discriminate among who should be entitled to get your property at death. You will also get the satisfaction of making the gift while you are still alive. 

3. Tell the kids to resolve conflicts using a three tier model. 

First, follow my clear expression of who should take the gift.

Second, if I have not identified the taker, put your names in a hat and draw them out and follow that order in succession as each child gets to pick one item. Then the next person in line get to choose one item and all of the items are to be chosen in succession until they are all gone, or no one wishes to make any further choices. 

Third, any items remaining shall be sold or donated and the proceeds shall be divided equally among the takers. 

If you do this, most disputes can be resolved or prevented without the intervention of the courts. Once a matter is resolved in court, most of the time those involved will no longer speak to one another. That is the real tragedy. . . . You can do better.

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