Clients frequently spend a lot of time considering their estate
plans – and that is particularly the case when it comes to
their Wills. They plan meticulously, and their Will is clear about
who gets the house and the major assets.
However, they give far less thought, if at all, to their
personal effects, says Paul Sullivan in the 15 April 2016 edition
of The New York Times.
Paul is absolutely correct. Highly paid legal and financial
advisors construct most complex estate plans and have little
difficulty administrating the deceased's estate after death.
However, when asked how to divide up the deceased's personal
effects, they "pass the buck" to the family to decide or
It is strongly recommended when making Wills, that clients make
a special provision for personal effects to be distributed by way
of a separate memorandum of wishes that lists the items
individually along with the intended beneficiaries of such personal
This memorandum can be changed at any time after the Will is
signed without having to change the Will or revisit the lawyer who
drafted it. When preparing such a memorandum it is important to try
and be fair in the distribution to members of the family. It is
also important to take into account that different personal items
have different meanings to different beneficiaries.
Such a memorandum can create a process governing the
distribution of your personal effects not particularised or you can
specify that certain items be given to specified beneficiaries
– or a combination of both, especially where only the major
personal items are listed and the minor items are not mentioned at
In most families it is a mistake to think that you can leave the
distribution of your personal effects to your children to decide on
who gets what, as this abdication of responsibility seldom works.
Usually this method ends up in a "free for all". In other
words who gets into the house first gets the best pickings.
Parents seldom know what items are important to their children
and grandchildren. When I advise clients to discuss the
distribution of their personal effects with their family, they
frequently express surprise to me about the answers they get back
and it is often the case that more than one beneficiary wants the
Another option is to start distributing your personal effects
while alive. Those pieces of jewellery that you no longer wear or
the silverware that you no longer use or the tools and such sitting
unused in the garage, can be given away during your lifetime. This
approach allows you the pleasure of seeing the happiness that the
items give to members of your family.
If you wish the distribution to take place after death and are
not prepared to list all your personal effects in a separate
written memorandum, then set out a process addressing how the
division should work and appoint referee(s), which are usually your
executors, to carry out the plan.
Your children can be asked to divide the personal effects into
lots of similar value or, as a safety precaution where there is any
disagreement, the executors or a valuer – if there are
valuable items – can do so.
For example, ask your children to pick playing cards from a deck
to determine who goes first in the selection process. Another
method is to use pieces of paper with items marked on them and
placed in a hat or bowl; then, starting with the eldest child, each
has a turn or turns in sequence to pick out a paper with the item
marked on it.
There are numerous other methods for such a division and it is
important to select one of them where it is necessary to do so in
order to decide on any items not specified in your memorandum.
The worst thing you can do is nothing, leaving it to chance as
to who gets what. After all, our island's motto is "Quo
Fata Ferunt" -- "where the fates carry us". In Sir
George Somers' case he ended up on the rocks.
Article first published in The Royal Gazette September
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