Articles Posted in Wills

Typical situation.  An elderly mom with two adult children, Sally & John, passes away with a house full of nice personal belongings (furniture, antiques, crystal and jewelry).  Sister Sally lives with mom or in the same town and brother John lives 500 miles away. When mom passes, Sally notifies John but it takes him a couple of days to get into town for the funeral.  Meanwhile, Sally picks through the personal belongings and takes for herself what she wants and doesn’t tell John about it.

What actually should be done but rarely happens.  A Upon a death, the law requires that the deceased person’s personal property as well as money and real property be inventoried and accounted for.  Whether it is a probate situation or a living trust situation (i.e. no probate because of there being a trust in place), somebody needs to pay immediate attention to the personal property within a day or two.  It is a sad fact of life that I and nearly all other estate attorneys have observed that personal property often disappears without any trace unless steps are taken to preserve it.  In the ideal situation, the entire house including the personal property is photographed immediately and then detailed lists are made, room by room, of what is there.  Then, a personal property appraiser is hired to make a detailed listing of everything and appraise the values.  Few people realize it, but there are professional appraisers.  One resource is the American Society of Appraisers which can be found at http://www.appraisers.org/Disciplines/Personal-Property

What can be done to recover missing personal property?  The short answer to this is that very little if anything can be done.  This is the classic case of once the horse is out of the barn the remedies are few an ineffective. Theoretically, as in the example above, brother John can file a probate court petition against sister Sally but it is up to John and John’s attorneys to prove that Sally took the items in question.  Unless there are photographs or written evidence created very close to the mom’s passing, John can’t produce evidence to prove (a) what the missing items were and/or (b) that mom still owned them at her death or (c) that Sally took the missing items.  If John files against Sally she will typically deny any knowledge of anything.  If it were money missing, then bank records can be subpoenaed to prove what money was taken and whose account it went into.  Not so with personal property, unless the items are of significant value or are put up for sale in something observable such as Craig’s list.  Because mom’s personal property is not typically on people’s minds in mom’s last days, not a lot of care or record keeping is done to keep track of what there is.