Sentimental or Argumentative
Recently, the family of Robin Williams commenced the not unfamiliar process of destroying family relationships by fighting over sentimental assets. Surely the decedent never wanted there to be a fight and was sure he had taken care of everything so that this would be avoided. The Williams’ estate is a large one, and involved a blended family, but such a fight has nothing to do with value, and often does not involve a blended family. It has to do with greed, hurt and anger.
I had a female client whose mother died leaving a Will naming her son as personal representative. The Will gave the personal property equally to the Children as they shall agree. If the son and daughter could not agree, the personal representative (i.e., the son) would make the decision. The problem: daughter and son did not get along. Mother had always said daughter would receive certain red wine glasses, but she did not put it into her Will. Son said he was taking the glasses. My advice: buy the most expensive red wine glasses she could find and enjoy them as gifts from her mother. “Why?” I told her she would end up paying me far more than the value of the new glasses and I could not guarantee she would get the other ones. The client did this, saved legal fees, and has lovely glasses to enjoy.
To avoid these problems, put specific gifts that could cause issues in the Will. Then the court will be certain the distribution occurs. You can also have a memorandum of gifts that is separate from the Will but it is not enforceable by the court. You could have the memorandum executed as a Will so that it could be enforceable, but you would have to re-execute it whenever you changed your mind. Alternatively, you give them away while you are still alive. Putting sticky notes on objects won’t be enforceable and can easily be changed.
The client could have avoided the problem by naming an independent person as personal representative, or could have provided that if the children did not agree on the division, that the property be sold and the net proceeds be added to the residuary of the estate. Each child would be able to buy the items if they wanted to and, since the proceeds would go into the residuary estate, the buyer would effectively only pay one half the cost, assuming the children are to divide the residuary estate.