- Parents, who take a leap of faith believing that their children will sort out the ownership of these assets in a detached and non-emotional manner, may be creating unnecessary dissension amongst their children.
- Parents put their executor(s), who are often one or more of their children, in a precarious position, with respect to their liability for probate and income tax of the estate.
Ensuring an Orderly Distribution of Personal Property
Lynne Butler, an Estate Lawyer and Senior Will Planner for Scotia Private Client Group, and the writer behind the excellent blog Estate Law Canada, had this to say about personal effects: “My experience over the years has been that more estate fights happen over personal items of the deceased than happen over money. Sure we all like money but it's the personal items that have the sentimental value".
So how can parents mitigate the potential for a family fight? In three words: inventory and document. Parents need to undertake a detailed review of all personal items from art and antiques to jewelry to great grandma's tea set and ensure these items are reflected in their wills. Where there are significant variations in value for items such as art, antiques and jewelry, parents can choose to ignore the valuation issue and just leave those personal items to the child they wish. The other option they have is to equalize these disparities in value in their will through cash or other means. For less valuable items with sentimental value, the will should be as detailed as possible. The key is to ensure you minimize the amount of unallocated personal effects not included in your will.
Don't Leave Your Executor(s) in a Precarious Position
In November, 2011, I wrote a blog post titled “Ontario Probate – You may want to plan to Die in 2012 in which I detailed how changes to the probate rules, known in Ontario as the Estate Administration Tax (“EAT”) will now allow Ontario estate auditors four years from the date the EAT is payable to assess or reassess the tax. The consequence of this change is that executors will now have to be extremely careful in distributing estate assets.
I have been informed that where executors are diligent in their duty, they will only be responsible for any EAT assessment or reassessment in their representative capacity. However, most lawyers are still confounded as to whom Ontario will go after if the assets have already been distributed. The general consensus appears to be the beneficiaries will be held liable, but some commentators have suggested that because the issue is far from clear, executors may want to hold back the final distribution for four years, a very impractical solution.
Where assets are undervalued for EAT purposes, or where a Picasso grows legs that allow it to mysteriously walk out the door, executors will potentially have liability and penalty concerns. Parents in all provinces should understand that by not fully documenting their personal effects in their wills, they may be putting their executor or co-executors in an untenable position.
Personal Effects not Listed in the Will
Here are some suggestions:
- As soon as possible, change the locks on the deceased’s home and ensure all assets are secured in the home. Valuable assets should be put into the deceased’s safety deposit box, if the bank allows such, or put into a new estate safety deposit box
- Call a meeting of the beneficiaries and make it clear to them that they are not to remove any assets from the home and set out your intended plan of distribution of the personal effects.
- Inventory and catalog all assets.
- Get rid of the “junk”. We all accumulate old clothes, furniture etc. Weed out the crap and inform the beneficiaries they should see if there is anything they want or these effects will be donated, or removed by a Junk Removal service.
- After you have had time to ensure everything has been accounted for and the estate is starting to move forward, distribute the assets that were noted in the will in accordance with the deceased’s instructions.
- Lastly, comes the hardest part. How do you distribute the deceased’s personal effects that have not been itemized in their will? I have read, heard or seen the following possibilities:
a) For large valuable assets, attach values and attempt to distribute proportionately, if the assets allow for proportional distribution. First pick could be determined by draw and the person choosing last would then pick first the second time around. If the assets are disproportional, you can auction off the assets for a proposed value. If the value received by one beneficiary exceeds that of another beneficiary, the excess value received can be equalized with cash they have received from the estate or their own funds.
b) For less valuable assets and sentimental assets, see if you can work something out with the family and/or beneficiaries. The beneficiaries can rank the assets one to ten and the assets are then allocated to the beneficiary with the highest ranking of each asset. Alternatively, a lottery can be used or any other method the beneficiaries can agree upon. You just want to distribute assets as fairly as possible while trying to minimize any issues between the beneficiaries.
Parents need to be cognizant of the precarious position they may leave their executor(s) in where they do not itemize and allocate as many of their personal effects as possible in their will. For personal items not listed in the will, executor(s) need to secure, inventory and organize these personal effects and create a plan for distribution of such assets.
The blogs posted on The Blunt Bean Counter provide information of a general nature. These posts should not be considered specific advice; as each reader's personal financial situation is unique and fact specific. Please contact a professional advisor prior to implementing or acting upon any of the information contained in one of the blogs.