personal property entitlement after a parent dies

W

Waunita Shaw

New Member
Jurisdiction
Minnesota
I gave my mother a painting as a gift. She recently passed away. Am I entitled to get it back. She did not specify it the will as being given back to me?
 
Waunita Shaw said:
Am I entitled to get it back??
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Legally NO, the item became hers the moment she accepted the GIFT.

Depending on the value of her estate, all items must be probated.

If there is a small state exception in the state where she expired, probate can be bypassed.
Waunita Shaw said:
She did not specify it the will as being given back to me?
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I believe you answered your own question.
 
adjusterjack said:
Are there any other heirs besides you?

What did the will say about her personal property in general?
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She left everything POD for her bank accounts and did a TOD for the house to my sister and I. My sister is being difficult with how I'm handling things. The will said the contents are to be divided which is the challenge. I believe a gift is part of the estate but if there is great sentimental value wasn't sure how that is handled
 
Yes, the gift is part of the estate. If you and your sister can't agree on who gets the painting you will have to sell it (if it has any value) and split the cash.
 
adjusterjack said:
If you and your sister can't agree on who gets the painting you will have to sell it (if it has any value) and split the cash.
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Not so. While selling it and splitting the proceeds is one option, it is not the only one. The executor of the estate can do the distribution of assets other than specific bequests in any way the executor wants so long as the value of the split works out ok. For example, suppose the pot of personal assets contains 25 things that total $10,000 in value and the will says to divide it equally among two people, Amy and Becky. Becky is the executor. Becky can divide those 25 items up any way she wants so long as Amy gets $5,000 worth of stuff and Becky gets $5,000 worth of stuff. So Becky could keep the most sentimental items for herself if she wanted in her $5,000 worth of stuff and give Amy the more mundane $5,000 pot of stuff. Becky might incur the wrath of Amy for doing it, but it would be perfectly legal for Becky to do.

In short, the executor is in control and gets to do things her way so long as the terms of the will are met. The executor doesn't have to get the agreement of anyone else.
 
Waunita Shaw said:
I gave my mother a painting as a gift. She recently passed away. Am I entitled to get it back.
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No. The painting is part of her estate and should be disposed of in accordance with the terms of her will.

Waunita Shaw said:
She did not specify it the will as being given back to me?
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Despite your use of a question mark, this sentence is not a question. I assume the use of a question mark was in error.

Waunita Shaw said:
She left everything POD for her bank accounts and did a TOD for the house to my sister and I. My sister is being difficult with how I'm handling things. The will said the contents are to be divided which is the challenge. I believe a gift is part of the estate but if there is great sentimental value wasn't sure how that is handled
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"Sentimental value" is something that has no meaning in the legal world. Does this painting have any value to anyone other than you and your family members?

Have you (or has someone else) sought to probate the estate and be appointed as executor of the estate?
 
I am executor and am waiting on the judge to approve me as estate representative. I was named representative in the will. The household contents were not assigned to any specific person. Making an itemized list of contents. Some of which are family heirlooms.
 
Waunita Shaw said:
I am executor and am waiting on the judge to approve me as estate representative. I was named representative in the will. The household contents were not assigned to any specific person. Making an itemized list of contents. Some of which are family heirlooms.
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"Executor" and "estate representative" are basically the same thing, and you're not either one until the court appoints you. If the painting in question is not mentioned specifically in the will, then it gets disposed of in accordance with the will's residuary clause. I agree with "Tax Counsel's" response, except to the extent that it implies that an executor who is also a beneficiary gets to pick and choose what he/she wants to keep as long as the monetary division complies with the will. The executor is not entitled to use his/her position for personal benefit.
 

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