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Probate and avoiding problems with chattels
While financial assets can be divided relatively easily when settling an estate, this is not usually possible with heirlooms such as a painting, a piece of furniture or individual pieces of jewellery. Even if items are not valuable, such items may be the cause of a dispute between siblings who have set their heart on something because of its sentimental value.
In law, chattels are any items of tangible and moveable property, such as jewellery or artwork or antiques. When dealing with estates, all the person’s assets are included, even personal belongings of low or no value. As such, it is important to ensure any potential issues are avoided wherever possible.
Common issues arising with chattels
Often, because people might not realise that chattels need to be included and distributed as part of the estate, well-meaning family or executors might clear a property too promptly, getting rid of items that are meant to pass to a certain person or that should be valued to ensure the correct inheritance tax is paid.
Even if the executors clear the person’s home carefully, it could be the case that certain chattels included in the will cannot be found or have been lost or given away during the testator’s lifetime. In this case, the chattels cannot be gifted according to the will as the gift will fail due to the legal provision of ademption.
Where family members do not get along and are likely to disagree about certain items, if the will does not specify who should receive which personal belongings this can result in protracted disagreements.
Alternatively, a will could give executors too wide a discretion to pass chattels as they see fit. For example, a will might include a wish for a certain item of jewellery to pass to a particular family member, but if it is just a wish the executor will be free to sell the item instead or give it to a different beneficiary, causing the intended family member to miss out.
How testators can avoid common issues with chattels
When you are making your will, it is important to think about whether to include any specific instructions regarding chattels.
If you wish to leave a relatively small, low value item to a specific person (and your family get along well) it can be more sensible to make a separate letter of wishes. This protects against the potential complication that the item may no longer be in your possession at the time of your death.
Alternatively, if your family do not get along and are likely to argue over your personal belongings, detailing gifts in the will is a safer option. Dealing with your chattels this way may also be better if you have particular wishes about who should receive certain items, and you do not want your executors to deviate from this in any circumstances. In the case of warring families, it can also be better to appoint independent executors to ensure that arguments are kept to a minimum.
If you are leaving items by way of a letter of wishes, it is important that your executors understand that they should only deviate from your wishes with very good reason. A professionally drafted will and letter of wishes will ensure that this is clear from the wording used.
How executors and family can avoid common issues with chattels
After someone has died, before clearing any property, it is important to ensure that the valid will has been seen, read and fully understood. If in any doubt, a solicitor can help you to interpret the will to make sure you do not take any action which could adversely affect any of the beneficiaries.
If a will, or a separate letter of wishes accompanying the will, mentions any specific chattels, it is the executor’s duty to ensure that the property is thoroughly searched so that all items mentioned are found. If any items cannot be found, you should document the details of your investigations and notify the intended beneficiary as early as possible.
If the will is accompanied by a separate letter of wishes, it is important that you understand the difference between the two. Broadly speaking, a gift made in the will itself must be given to the person specified whereas a letter of wishes simply expressed a clear wish as to who certain chattels should pass to and an executor may deviate from this wish with good reason. If you are unsure, you should seek the advice from our lawyers.
How we can we help
Chattels are an important part of any estate and require advanced legal planning in the same way as other assets.
Our solicitors can guide you through the issues when making a will or drafting a letter of wishes, and we will help you to make appropriate and legally valid provisions to ensure that your entire estate (including your chattels) passes as you wish.
This article is for general information only and does not constitute legal or professional advice. Please note that the law may have changed since this article was published.