Mediating a Key Estate Settlement Issue - Dividing Personal Property


by Rikk Larsen

March 2003

Rikk Larsen Perhaps it is surprising, but most of the time families struggle through the process of dividing up personal property following a death relatively successfully. Along the way there may be tough or delicate emotional moments but when queried, most heirs think the journey is usually a positive exercise. Family is inevitably restructured by death and the personal property distribution process can be a focal point for managing these changes. Everyone seems to learn something from the decisions that have to be made and new family roles get tried out before being solidified.

Unfortunately, in this unique emotional journey sometimes serious decision crises do occur and the process spins out of control. Effective communication stops. One or two possessions become the lightening rod for complex feelings and old hurts. Resentments build and may linger for years if the underlying issues aren’t dealt with properly.

Mediation with its “structural requirement” that parties focus on and value the dynamics of their relationships and interests before grabbing at specific options can be a powerful process tool for families struggling with difficult issues.

Let’s look at some of the broad areas of personal property disputes in a mediation context.

The emotional elements of attachment to items that are not based on value

Parties have to learn to understand that they won’t necessarily know ahead of time the emotional content of each potential decision. There may be items that have dormant special meaning to heirs that only death can bring out. An “I have to have this piece of furniture because Mommy loved me best” or an “I took care of her 24/7 before she died while you did nothing back in Cleveland so I deserve to choose from the silver first” can spring seemingly from nowhere. More often then not the deep emotion and its connection with object X is not expressed as directly as above. Usually old roles and unstated interests dart back and forth as families grapple with tough decisions as if in a fog. Mediation with its inherently different communication dynamics from entrenched family patterns of behavior has the power to subtly break up these patterns. The presence of a third party neutral and the process he/she dictates can help make a connection between the item and the emotion. A satisfactory outcome more often then not is the result.

The perceived value of items vs. their “real” value

It is amazing how often families have misperceptions about the true market value of personal property. Things that were expensive to purchase may have little or no current value, like a designer gown or an Armani suit. Collectables that everyone thought would be worth thousands may be only worth hundreds. And then there are the wonderful surprises like that unobtrusive hutch in the corner of the den that is a rare antique but nobody knew it. To complicate matters the decedent may have made detailed dispersal decisions based on false assumptions and family members may have been thinking about their wish list under the same illusions.

If there is one absolute recommendation about personal property distribution a mediator should require before a first session it is to make sure there has been a professional appraisal of everything the parties are going to discuss. There will then be no misunderstandings about value as families begin to explore decisions and the executor’s job will be helped immeasurably.

Another caveat - Whether the executor has initiated the mediation process or not it must be made clear that the mediator is not trying to do the executor’s job. Discussion should be limited to items and issues of dispute.

The promises made about disposition during a decedent’s lifetime both verbally and in writing

Generally, an executor is supposed to follow the wishes of the decedent as instructed in the will and its codicils. However, executors are often confronted be a desire to honor the spirit of the decedent’s wishes while acknowledging the reality of the heirs’ own sense of fairness and value.

By working closely with heirs the executor (who may or may not also be an heir) can take the opportunity to define a new form of distribution fairness. Generally, this requires unanimity among the heirs if the perceived wishes of the decedent are to be changed. There is often no better gift to the memory of a loved one then to gently adjust the inheritance process to reflect the values of the living.

If a family can’t reach this new concept of equity, mediation has the special potential of being a forum for imaginative option generation that values all the interests in the decision mix.

Example - A family of six children were the only heirs when their last parent, their father, died. The father’s written wishes for the disposal of his personal property were completely arbitrary both in terms of value as well as which family members were recognized. With the help of a mediator, the children explored many options and finally agreed to have the distribution process be equal by dollar value for each heir. By monitizing each item and acknowledging that at the end of the day each heir’s column would total the same dollar sum even if that required adding cash from the estate checking account, they were freed to deal with the variable emotional content of each item both named by the father and not named. This “adjustment process” allowed them to maintain harmony and actually exorcise some of the demons of their youth.

As we in the field know, mediation adapts well to virtually any conflict type – from the deeply personal to a theoretically dry technical business issue. Thus it isn’t whether or not to use mediation in personal property disputes, the key issue is how to let people know that mediation is out there and readily available to all.



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Biography




Rikk Larsen is a founding partner of Elder Decisions where he is a mediator, trainer and conflict coach. He has created and presented conflict skills trainings to eldercare professionals from around New England. Rikk served on a Subcommittee for the Massachusetts Trial Courts Standing Committee on Dispute Resolution. He co-presented Using Mediation in Elder Law at the Massachusetts Chapter of the National Academy of Elder Law Attorneys and presented a workshop When Families Struggle with Dementia: Facilitating Solutions through Mediation at the Dartmouth Alzheimers Conference. He is the co-author, with Crystal Thorpe, of "Elder Mediation: Optimizing Major Family Transitions" for Marquette Elder's Advisor Law Journal. Rikk is a former case coordinator for Family and Probate Court and a case liaison for Small Claims Court for the Harvard Mediation Program. He attended Harvard Law Schools Program on Negotiation, studied elder issues with The Center for Social Gerontology and the concept of introducing meditation and spirituality into the mediation process at the Harvard Negotiation Programs Insight Initiative. He is a member of the New England Chapter of the Association for Conflict Resolution and the Massachusetts Council on Family Mediation. He received his BA from Williams College and his MBA from Harvard Business School.

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Website: www.howell-larsen.com

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