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Where there's a will, don't let there be a fight

February 03, 2006|by JULIE E. GREENE

julieg@herald-mail.com

"I want that."

"Mom told me I could have that."

You might attribute such words to children, but they also could belong to adults bickering over who gets dad's hunting rifle, mom's collectible china or a big-screen TV when a loved one dies.

The issue that generates the most fighting among family members over a family member's estate is the distribution of personal items, says Susan A. Nicholson, a Hagerstown attorney who handles wills, estate planning and estate administration.

Sometimes items are removed from an estate before the will is settled and some arguments end up in court, Tri-State area court officials say.

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"I feel that an estate settlement is often like a divorce among polygamists, because you have multiple people fighting," Nicholson says.

If you want a relative, friend or organization to have a specific item, the best way to ensure that is to have a detailed will, say Nicholson and John R. Bloyer, Washington County's register of wills.

Such details should be included in the will or in a separate memo, incorporated into the will. The memo would be easier to update, Nicholson says.

If you don't want to provide a detailed list of who gets what, at least set up a way to determine who gets what, Nicholson says. This could be simple: Let the heirs take turns picking items after drawing numbers to determine in which order they select.

People don't have to wait until they die to pass on personal items. If there is something you no longer have use for or that is collecting dust in the attic, you might want to go ahead and give it away.

"Have the pleasure of seeing the people you want to have them enjoy them," Nicholson says.

Nicholson says she leaves it up to clients to determine whether to talk to their heirs about their wills.

Just keep in mind that what is said is not legally binding and things can change. Are you going to update your heirs every time that happens? You could be creating expectations and disappointments, she says.

Discussing your will with those who will be affected by it could be a good idea, Bloyer says.

"Quite frankly, that doesn't happen," Bloyer says.

Samuel Bayer is a member of the three-judge panel for the Washington County Orphans' Court. Orphans' Court duties include ensuring the provisions of a will are followed.

Bayer says talking to heirs beforehand about your personal effects could help you get an idea of what's important to them, whether it's a monetarily valuable item or something that holds sentimental value.

Sometimes discussing a will with heirs can create problems, Bloyer says.

Word of mouth does not overrule a will, which is a legal document, Bloyer says.

"We hear that quite frequently. 'Well, mom or dad told me they wanted me to have this.' Unfortunately, you need to put that in a will to make sure your wishes are followed," Bloyer says.

According to Nicholson, here are some other things to consider when writing your will:

Do you want your assets distributed evenly so each heir receives the same monetary value? That could factor in who benefits from life insurance, joint bank accounts, monetary inheritances as well as require appraisals of personal items.

If one of your adult children was living with you, does that child get the house? If not, how long does that child have to move out and what expenses, such as phone and cable bills, is the child expected to pay?

Addressing these issues in the will could prevent arguments later about the person living there rent-free even though that person might feel he or she is protecting the property by staying there.

What if one heir gets the house, but it is appraised at more than one equal share of the total estate? You could note in the will that the heir has a certain number of months to pay cash to the estate to make sure everyone has an even share.

Address items that you have loaned to someone. Clarify whether it was a gift or a loan. If you loaned your hunting rifles to your son, does he get to keep them?

Address items in your home that were on loan from someone else, whether or not they were borrowed from a relative.

Explain why you chose someone to be your personal representative, known as an executor in some states. For example, you could say Sarah was chosen because she was the child who lives closest to your house so it's more convenient. That might not be the real reason, but it saves face among the other heirs.

Wishing your heirs won't fight over your assets, even asking them not to, doesn't automatically make it so.

"Sometimes the fighting is just to get back at a sibling, not because the person wants the item," Nicholson says.

And sometimes a person files a lawsuit over a will just to be a nuisance or in an attempt to get more money in exchange for dropping the lawsuit, she says.

Nicholson has a suggestion for limiting fighting: Simply state in the will that anyone who contests the will won't get anything.

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