When a loved one dies, families rarely fall out over what happens to the house or savings. More often, the trouble starts over something like a ring, a watch, a painting or the dining table where every family Christmas took place. These items may be worth little on paper, but their emotional value can be enormous.

The Trouble With "She Always Said It Would Be Mine"

Usually what happens to your belongings after you die is decided by your Will, or by the law if there is no Will. Family promises are meant well, but they usually carry no legal weight and it is surprisingly common for the same item to have been promised to more than one person.

If you want someone to have something, it may be better to give it to them now. Even then, a gift generally needs to be handed over, not just announced. A painting "given" to a son years ago but still hanging in his mother's living room may still belong to her in law and form part of her estate. There can be tax consequences too if you are thinking about gifting during your lifetime.

How a Will Can Deal With Treasured Possessions

The clearest approach is to leave a specific legacy in your Will: a gift of a particular item to a named person. To work well, it needs three things:

1. A clear description. "My gold watch" may not help if there are three of them. "The Omega wristwatch that belonged to my father" leaves little room for argument.
2. A back-up. If the person you choose dies before you, say who should receive the item instead.
3. A plan for change. If you no longer own the item when you die, because it was sold, lost or given away, the legacy normally fails and the beneficiary receives nothing in its place unless your Will says otherwise.

If you would rather not go item by item, your Will can leave your personal belongings to a group, such as your children, to divide as they agree, with your executors having the final say if they cannot. That avoids a stalemate.

A Will can also direct your executors to give effect to later signed notes dealing with particular items. A letter of wishes, which is not legally binding, is a good place to explain the story behind an item and why you have chosen a particular person. That can be useful for a collection that changes over time, but the wording matters. The Scottish courts have refused to give effect to informal notes that did not clearly show a final intention to change a Will, as our articles on handwritten changes on the back of an envelope and an unsent letter explain.

What Happens When the Will Says Nothing

If your Will simply leaves everything to your residuary beneficiaries, your belongings become part of the general estate. Your executors will need to list them, and valuable jewellery, watches or works of art may need a professional valuation before Confirmation can be obtained. If the beneficiaries cannot agree who takes what, the executors may have little choice but to sell and share the proceeds, which is often the outcome nobody wanted.

Before Anyone Takes Anything Home

A common flashpoint comes in the days after someone dies when a relative removes items from the house for safekeeping, or because they were promised to them.

Executors of a Will are responsible for gathering in and protecting the estate, and nobody is entitled to help themselves before the executors have decided how it is to be shared. Executors should list and photograph the contents, secure anything valuable and check that an empty house is still insured.

What If There Is No Will?

Where there is no Will at all, a surviving spouse or civil partner is entitled to the furniture and contents of the family home, up to a set value, as part of their Prior Rights. The law expressly excludes heirlooms from this, meaning items with such strong family associations that they ought to pass to another member of the family rather than the surviving spouse. However, deciding what counts as an heirloom is a judgement call and can become a dispute in its own right.

Legal Rights also play a part. A surviving spouse or civil partner and children can claim a share of the moveable estate, which includes jewellery, paintings and furniture, whether or not there is a Will. That claim is to a share of the value rather than to particular items, and a child who claims Legal Rights generally gives up what the Will leaves them, including the treasured item they hoped to receive.

Practical Steps You Can Take Now

• Make, or update, your Will
• Make a list of the items that matter to you, with clear descriptions and photographs.
• Decide who should receive each one, and who should receive it if they cannot.
• Talk to your family so expectations match your Will. Our article on whether to let your beneficiaries know what they will inherit looks at this further.
• Review your Will if you sell or give away items or acquire something significant.

How Paris Steele Can Help

Our Private Client team can help you make or update a Will that deals clearly with the possessions that matter most, and can support executors when belongings become a source of tension.

Contact our North Berwick office on 01620 892138 or our Dunbar office on 01368 862746, or get in touch with us online.