Basic Checklist for Dividing a Decedent’s Personal Property
By Brian Starr, attorney at law
Nothing seems to bring up childhood resentments and lifelong animosities like the need for adult children to divide tangible personal property after a parent dies. These resentments are even stronger in the case of a blended family (in other words, a family in which one or both of the husband and wife had children from a previous relationship, and then married each other). In that case, usually one side of the family ends up with more control over the property, and the other side of the family is left to try to figure out how to obtain copies of childhood photographs and meaningful items. What is meaningful to one side of the family may be junk to the other side of the family.
Because of the inherent possibility for conflict, stories abound about family squabbles over personal property. Personal property typically includes household items, clothing, jewelry, art, lawn and garden equipment, tools, firearms, collectibles and more.
Here is a basic checklist for how to deal with personal property. This is not intended to be a replacement for the guidance of a probate attorney guiding the personal representative through the process and helping predict and avoid areas of likely conflict. This advice can be invaluable because the option often entails expensive and time-consuming litigation.
1. Protect the Assets of the Estate.
As a fiduciary (whether as a trustee or personal representative of a will) you are responsible for the assets of the estate and one of your initial responsibilities is to identify, collect and preserve the estate’s assets. You should change the locks on a residence and ensure valuable items are inventoried and secured immediately. Determine whether the assets are adequately insured in the event of loss by fire or theft prior to distribution. If there are guns, get them out of the house – either to a gun dealer (if none of the beneficiaries wants them) or to another secure location.
Do not dispose of anything yet, because the Arizona statute has a preference for distributing property in kind (as opposed to selling everything and dividing the proceeds).
2. Start with a Good Inventory.
Inventory the assets carefully before family members begin to remove items. If you need assistance with this, estate organizers can help. There can be different degrees of detail in the inventory. While one family may be more trusting and perfectly happy with a very general, basic inventory, another family with more conflict will want a very detailed inventory. Rely on your attorney to advise you in this regard.
3. Carefully Check for Legal Documents that Might Contain Instructions for Gifting of Certain Items.
Many states, like Arizona, allow for an individual to make a list of personal items he or she would like to give to others; this list is separate from the Last Will & Testament or Trust Agreement. If properly done, this list can be legally binding – so it’s important to ensure that you have all the information that you need before promising an asset to anyone. Check safe deposit boxes, lock boxes, safes or other areas where your loved one may have kept important papers. Remember, in the event of duplicate lists, the most recently dated list will most likely be controlling, but always contact an attorney in the state where the estate is located if you have any questions about asset distribution.
4. Arrange for Appraisals of Certain Items.
Some items may need to be appraised to ensure an equal distribution of assets or for other estate purposes. Ensure that all necessary appraisals are obtained in writing prior to making distributions of any assets.
5. Consider Hosting a Family Meeting to Determine Interest in Items Not Specifically Gifted.
A family meeting may be a great place to start in some situations, but in others it may turn into a nightmare. Many wills or trust agreements contain provisions for handling disputes over personal property, check the appropriate documents for directions or consult with an attorney in the state where the estate is located.
Brian Starr is the founding partner at the Phoenix law firm of Starr Law Firm, PLC You may contact Brian at 602-795-0700. For more information, go to http://www.starrlawfirm.net/.
Disclaimer: The information contained in this article is made available for general informational purposes only, and is not intended to constitute specific legal advice or to be a substitute for advice from qualified counsel. For that reason, you should not act or refrain from acting based on any information in this article without first obtaining advice from professional counsel qualified in the applicable subject matter and jurisdictions.