How to Divide Personal Possessions during Probate
15 October 2018
When someone dies, the value of their Estate might be divided between two or more Beneficiaries. This may seem straightforward, but when it comes to sharing out sentimental items and treasured possessions during Probate, it can become complicated.
If more than one person wants a particular item, this can lead to disagreements between family members. We provide some practical tips on how to divide possessions fairly, minimising the risk of disagreements.
What Does The Law Say?
There are no laws stipulating how personal items (otherwise known as chattels) should be divided up amongst Beneficiaries, unless these have been specifically named in the Will.
If the deceased left a Will and this details items that they would like certain individuals to have, then these individuals are legally entitled to these items. Gifts in Wills of this nature are called specific legacies. An example of a specific legacy could state that the deceased would like their gold watch to go to their nephew, Stephen. This would mean that Stephen is legally entitled to the gold watch, even if someone else claims that the deceased had also promised it to them.
Where matters become more complicated is where specific items have not been named in the Will. An Estate can be divided in any number of ways in the terms of the Will. It could be that the deceased wants their Estate to be divided equally between their 6 grandchildren, for example, or that 40% should go to their brother, with the rest divided equally between their 3 cousins.
For more information, see Legacies in Wills and Probate Explained.
If the deceased did not leave a Will, then inheritance laws called the Rules of Intestacy will determine who is entitled to inherit what from the deceased. If there is more than one Beneficiary then the Estate will be divided into certain proportions, as set out in these rules.
Dividing Personal Possessions
Dividing the Estate funds into the relevant proportions can be reasonably simple, but issues can arise when it comes to sharing out the deceased's personal possessions.
There could be items which do not have any real monetary value, but which hold a significant amount of sentimental value, or there could be one or two very valuable items which cannot be divided between multiple Beneficiaries.
If Executors and Beneficiaries cannot agree on how to divide the household possessions, then all those involved can choose to seek independent legal advice. Alternatively, all of the items could simply be sold and the proceeds then divided as per the terms of the Will or the Rules of Intestacy.
Valuing The Deceased's Possessions
The Executor will need to calculate how much each of the items in the Estate is worth. This is because, when administering the Estate of someone who has died, the total value of everything they owned will need to be calculated for Inheritance Tax purposes. This includes their bank accounts, properties owned in their sole name, life insurance policies, pension schemes, stocks and shares, vehicles and all of their personal possessions.
Valuing an Estate for Probate can be a complicated task, particularly when it comes to calculating the value of household items. The valuation should be an accurate reflection of the price these items would sell for in the current market, taking into account their age and condition. You can research this yourself by searching for similar items that are being sold or you can instruct a professional to value these items for you. For antiques or collectibles it may be worth seeking the help of an expert. For gold jewellery, bear in mind that it could be worth more if sold as scrap gold than if sold as jewellery that is no longer in fashion.
Some household items may not hold much monetary value at all, if any. For more information, see How to Get a House and its Contents Valued for Probate.
Deciding Who Gets What
As previously mentioned, there are no legal guidelines when it comes to deciding how to divide personal possessions, so it's up to the Executor and the Beneficiaries to decide between themselves.
One option might be for all Beneficiaries to list out 5 or 10 items that they would want, in order of priority. These lists can then be compared. If everyone has a different item at the top of their list then this can make matters simpler. If more than one Beneficiary has listed the same item, then they can negotiate between themselves until an agreement is reached.
Another option could be to allocate a set amount of pretend "money" to each Beneficiary, which reflects the proportion of the residuary Estate that they are entitled to. They can then use this to "purchase" items up to the value of their entitlement.
If Beneficiaries simply cannot agree on who should get what, then the only option may be to sell all of the items that are in dispute so that the proceeds can then be divided between the Beneficiaries. This may be a last resort if the items in question hold significant sentimental value.
What about Items that No One Wants?
It's likely that there will be some household items that none of the Beneficiaries want to take. If these hold any value then these could be sold either individually or as a job lot to a house clearance company. Alternatively, they could be donated to charity. If they do not hold any value then you may choose to give them away or simply dispose of them. If this disposal incurs a cost, then the Estate will be liable for this.
Bear in mind that if chattels end up going to charity there's a specific Inheritance Tax form that will need to be completed, as these items will be exempt from Inheritance Tax.