Avoiding Family Feuds Over Personal Property

Personal Property: The Fuse that Ignites the Explosion

Almost always, the death of a parent causes some sibling issues to bubble to the surface. In most families, the issues are dealt with, ignored, or siblings go on with their lives without a fuss. On occasion, those issues explode into litigation. So what is the fuse that ignites the explosion? Personal property.

Money, stock and most real estate does not carry with it an emotional component. Everybody knows not to take money from the deceased parent’s house or bank account. To transfer stock certificates requires a probate proceeding and an accounting. Personal property, however, is right there for the taking.

And the taking is consensual, so the taker seems to think. Dad told him he could have the hunting rifle just three days before he died. As for the pictures, they were pictures of her wedding that Dad so proudly paid for. So what is the harm in just taking what was promised?

The harm is that Dad, in his last days, often promises the same item to different people. The harm is that when a child takes pictures, other children decide that even more pictures are missing. The harm is that once a child is seen “taking” something without asking, the other children can become very suspicious and even angry.

Personal Property Memorandum: A Possible Solution

So what is the solution?

One solution is to use a personal property memorandum. In Colorado, personal property can be distributed by an informal document called a personal property memo. It is a blank document with spaces to list personal property and the person who is to receive that property. It is considered an amendment to the formal Will if the Will references the personal property memo. All that is required is a signature on the memo. The memo can be changed or updated at any time, without the help of a Colorado lawyer.

Family photos are often a source of friction. Consider a clause in the Will mandating and paying for copies of family photos. While one would think this is an obvious solution to the problem, having the statement in the Will may help children think of that obvious solution.

Consider Adding a Mediation Clause in Your Colorado Will

For property not disposed of by a personal property memo, most Colorado Wills contain a clause giving personal property to the children or other devisees in substantially equal shares. However, the children are required to agree amongst themselves about how to split the property. Consider adding a mediation clause to the Will requiring the children to mediate disputes over personal property. In our experience, most probate litigation between family members can be avoided through good communication. Unfortunately, once probate litigation starts, most meaningful communication stops and the legal bills begin. A mediation clause promotes communication and helps reduce legal expenses.

Mediation is different from arbitration. Arbitration is binding. Mediation is not binding. In mediation, the parties are just required to use a mediator to try to come to a consensual agreement. If the parties cannot agree, they are free to petition the court for a binding decision.

Pay Attention to Personal Property Issues to Avoid Potential Disputes

While personal property is not the only source of friction between siblings, it is a common source or the beginning point for many probate disputes. Consider paying a little extra attention to personal property issues in order to avoid sibling disputes after the death of a parent.