What Happened to Mom’s Diamond Earrings

HNW Elder Law, Estate Administration and Probate

By Fredrick P. Niemann, Esq. of Hanlon Niemann, a Freehold, NJ Wills Attorney

I have drafted many hundreds if not thousands of Last Wills and Testaments for clients over the years. I have represented executors and administrators in the estates of individuals who have passed on. Based upon my experience, I can say with certainty that one common issue that often presents itself had to do with “personal property”.

Why is it that personal property becomes the source of so many problems since often the property has little to no monetary value. I can’t answer that except to tell you that personal property is the property that causes the most mess!

Personal property is typically comprised of items such as jewelry, furniture, paintings, and collections (stamp collections, baseball card collections).

Personal property doesn’t have its own “legal title”. In other words, a car has a title, so it is clear who owns the car. A house has a deed, so it is clear who owns the house. But personal property has no title. If someone runs off with the decedent’s diamond earrings, it is difficult to prove this because there is no title to the jewelry. It is also difficult to value the jewelry with any certainty, unless you sell the jewelry, or find it and have it appraised.

Despite what some people may believe, personal property (in the vast majority of cases) has little to no monetary value. Old jewelry typically is not worth that much. Furniture is almost always of little to no value. Collectibles typically have far less value than the collector (now deceased) believed it had.

Yet, in administering an estate and watching and listening to cases in NJ Chancery Probate Court, I have seen personal property be the most contested issue by all sides. I have seen beneficiaries claim that the executor did not properly distribute the personal property, or wrongly disposed of it without consent. Beneficiaries will claim that items of personal property (a painting, a piece of jewelry, etc.) are of unique sentimental value. Beneficiaries will also claim that the executor sold items of personal property that they wanted, or that the decedent promised to them.

I have seen executors and beneficiaries claim that another family member stole items of personal property after the person died, yet cannot document that it existed at time of death.

I have seen beneficiaries give an executor a difficult time because the executor wants the beneficiaries to take the personal property from the decedent’s house, and the beneficiary doesn’t want to be bothered retrieving the property (but will assuredly complain if the executor disposes of the property).

It’s irrational. Basically, the goal seems to be, I will take whatever position on the personal property that allows me to be difficult to the executor or the other beneficiaries, as the case may be.

As I mentioned earlier, since personal property has no title and its monetary value is debatable, the executor or beneficiary who is being accused of mishandling or misappropriating the item of personal property must try to prove that the item had little or no value, while the disgruntled accuser will claim that the personal property item had irreplaceable sentimental value: “That was mom’s dresser. I wanted that dresser to remind me of mom.”

It’s a no-win situation for both the accused and the accuser.

Courts address fights over personal property often in probate cases. They do not have a lot of patience over these skirmishes. If the court held a trial every time someone claims theft, coercion or mishandling of mom’s earrings, the court system would be even more dysfunctional than it often is.

There is no absolute solution for these “war of the roses” because in most cases, the accuser is simply making an accusation in order to cause problems. That’s why I add language in Last Wills that orders personal property to be sold if the beneficiaries cannot agree within 120 days of the decedent’s death.

Still many clients tell me, “My children won’t do that. They get along.” But you never know, so you should prepare for the worst and hope for the best.

To discuss your NJ Last Will & Testament, please contact Fredrick P. Niemann, Esq. toll-free at (855) 376-5291 or email him at fniemann@hnlawfirm.com/. Please ask us about our video conferencing consultations if you are unable to come to our office.

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