[WSBAPT] Hello/TPP clauses

Fri Jun 17 16:56:05 PDT 2022

I have come up with lots of creative ways to help the Personal Representative settle fights, from auctions with monopoly money (which would count in the overall division of the estate money later) to sealed envelopes from each beneficiary, and putting names in a hat to coin flips, etc.

I still use pretty simple language:
"In the event I have designated equal distribution of tangible personal property to more than one beneficiary and those beneficiaries fail to agree upon equal division within 90 days of my death, then my Personal Representative shall have ultimate and final decision-making authority concerning the division of such property."

It is my advice to clients to pick a Personal Representative who is fair and generally trusted in the family, and my advice to PRs that their duties of impartiality extend to division of TPP.

Heather

Heather S. de Vrieze
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From: wsbapt-bounces at lists.wsbarppt.com <wsbapt-bounces at lists.wsbarppt.com> On Behalf Of Joshua McKarcher
Sent: Friday, June 17, 2022 4:16 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com>
Subject: Re: [WSBAPT] Hello/TPP clauses

Lincoln,

Thank you for sharing this. In light of this phrase - "provided, however, that no Personal Representative who is a descendant of mine shall participate in any decision to distribute any item of Personal Effects to himself or herself" - how does the PR, if a son of the decedent, say, get anything, like the parent's watch? Is it your reading of the "drawing straws" sentence that it does not involve a "decision to distribute" personal effects to himself?

Thanks so much, Josh

From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Lincoln Miller
Sent: Friday, June 17, 2022 4:51 PM
To: WSBA Probate & Trust Listserv <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: Re: [WSBAPT] Hello/TPP clauses

Diane,

Here's some comprehensive language to consider using that may require some modifications depending on the circumstances. You'd want to create a definition for "Personal Effects" that comports with how you wish to define tangible personal property:

My Personal Representative is authorized to dispose of all of my Personal Effects in any manner that my Personal Representative, in the exercise of sole and absolute discretion, may determine, other than distributing any such property to any Personal Representative (unless that Personal Representative is a descendant of mine); provided, however, that no Personal Representative who is a descendant of mine shall participate in any decision to distribute any item of  Personal Effects to himself or herself.  My Personal Representative may but shall not be required (and shall not be liable to anyone or be subject to surcharge or removal for failing to do so) to maintain any theft, casualty or damage insurance with respect to one or more or all of my Personal Effects and any such insurance shall be charged to my general estate.  Without limiting the sole and absolute nature of the authority granted by the second sentence of this paragraph, I hereby expressly authorize my Personal Representative to sell one or more or all items of Personal Effects to anyone including but not limited to any descendant of mine, for such prices or prices as the Personal Representative, in the exercise of sole and absolute discretion, may determine.  The Personal Representative may but shall not be required (and shall not be liable to anyone or be subject to surcharge or removal for failing to do so) to obtain a formal or informal appraisal of any item or items determined to be so sold and may use any mechanism and pricing for sale such as a so-called "yard sale" or "garage sale," using common sense or a "best guess" to determine sale prices of such items.  Also, without limiting the sole and absolute nature of the authority granted by the second sentence of this paragraph, I hereby expressly authorize my Personal Representative to distribute to one or more of my descendants one or more or all items of Personal Effects as the Personal Representative may determine, in the exercise of sole and absolute discretion, including, but not limited to, making distributions to only one descendant to the exclusion of all others and without making or attempting to make any distribution to more than one be of equal value or of comparable per stirpital value of any distribution to another or other descendants.  In making any distribution to my descendants, my Personal Representative may use any means including, but not limited to, "drawing straws" or comparable ways to have my descendants choose items of Personal Effects but my Personal Representative shall not be required to distribute any item to one or more or all of my descendants.  Again, without limiting the sole and absolute nature of the authority granted by the second sentence of this paragraph, I hereby expressly authorize my Personal Representative to place items of my Personal Effects into storage for any period of time for later disposition and/or to advise one or more of my descendants that any of them may take any of the items or items in storage.  Also, again, without limiting the sole and absolute nature of the authority granted by the second sentence of this paragraph, I hereby expressly authorize my Personal Representative, in the exercise of sole and absolute discretion, to abandon (including, but not limited to, by paying to have items of my Personal Effects "thrown away" and without consideration for such items) even if the items may have considerable market value or to donate items to charity even over the objections of one or more or all of my descendants.  I appreciate that the costs of disposing of items of my Personal Effects relative to their worth may make it unwise to attempt to preserve such items or to distribute them to my descendants.  I want my Personal Representative to dispose of my Personal Effects in a manner that they conclude, in the exercise of sole and absolute discretion, is expedient.  No Personal Representative shall be held liable to any person or be surcharged or removed for following any authorization contained in this paragraph.

Lincoln

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From: wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com> <wsbapt-bounces at lists.wsbarppt.com<mailto:wsbapt-bounces at lists.wsbarppt.com>> On Behalf Of Diane J. Kiepe
Sent: Friday, June 17, 2022 3:19 PM
To: 'WSBA Probate & Trust Listserv' <wsbapt at lists.wsbarppt.com<mailto:wsbapt at lists.wsbarppt.com>>
Subject: [WSBAPT] Hello/TPP clauses

Hello - here I am again - it seems when I ask a question, a flood gate opens.

I am having more and more fights over Tangible Personal Property division and honestly it's making me want to quit law - ah but I digress.  In all seriousness, do you have language that you have seen work really well - honestly, I'm thinking of adding coin flipping by unrelated parties - it's really getting out of control.

Diane J. Kiepe

Diane J. Kiepe
Douglas Eden
717 W. Sprague Ave.
Suite 1500
Spokane, WA  99201
djkiepe at depdslaw.com<mailto:djkiepe at depdslaw.com>
509-455-5300

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