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Who Gets What?

Sometimes the least valuable assets in your estate cause the most division among family members after your death. Who should have grandma’s dining room table? Which daughter gets Mom’s diamond engagement ring? How should family photos be distributed?

Dividing heirlooms can be a touchy subject. Without a proper plan, your children may end up fighting over possessions. It is not unheard of for family members to never speak again due to such disagreements. If your will divides belongings without an explanation as to why one child gets one thing and another child gets something else, your children could end up with hurt feelings.

To avoid these scenarios, plan ahead. Talk it over with your children (or other heirs). By bringing them in to the conversation, you can make things easier for them later. These discussions are also a good opportunity to share memories and stories about the heirlooms. You get the opportunity to explain why something may be important to you, and you can find out what items are important to your children.

Every family handles the division of assets differently and you need to figure out a plan that will work best for your family. Some families want heirlooms to be divided equally; others feel that one child may need a little extra. Other families want to leave the process entirely up to the children. The important thing is to give this matter some thought before it is too late.

There are several ways to divide your things.

One option is for you to decide in your will who gets what. This can be accomplished in one of two ways. The first way is to specifically state in your will that Jane gets the piano, jewelry, china and silver and Frank gets the tools and furniture. While this plan provides clarity, it can prove inflexible. Whenever you have a change of heart (let’s say you want to give your pearl necklace to your granddaughter), you have to change your will. This plan can get expensive.
If you want to create a plan with more flexibility, you can request in your will that your Executor distribute your “tangible personal property” (jewelry, furniture, etc.) in accordance with a memorandum addressed to your Executor. This memorandum will indicate who will get what. When you change your mind, you do not have to change your will; you simply rewrite the memorandum. The disadvantage to using a memorandum is that your Executor is not legally required to honor the memorandum since it is not signed with the formalities of a will. However, if you completely trust your Executor to honor your wishes even though not legally required to do so, then this plan has a good chance of working.

Another option is to provide in your will that your things will be divided as your children may agree and if they don’t agree you can authorize your Executor to create a system for choosing such as a round robin, where each child gets a turn picking something or a lottery system. The bottom line is that you should take a look at what you own, examine your family dynamics, possibly discuss this with your children, and plan accordingly.

Meg Rudansky is a Sag Harbor-based attorney who specializes in the areas of Elder Law, Estate Planning, and Probate. She can be reached at 725-4778.