Thy Will be done: How to account for sentimental value in a Will

Helen Tudor-Fisk and the team at Grueber and Associates were back again this week with more adventures in the world of Wills and Estates on ABC’s show Fisk. In between Fisk’s ill-fated Library talk on Wills and the netball championship game, Helen also deals with an estate where the firm has been named an executor, and a granddaughter who is concerned about the loss of a precious item.

So how does the complicated business of sorting through an estate work? 

One of our expert Wills and Estates lawyers Kerrie Wood answers some of our questions:

Fisk, on behalf of Grueber and Associates, is named Executor of the Will and she’s seen taking care of tasks like arranging for cleaners and preparing the home for sale with real estate agents. Is it a common practice to name a law firm as Executor?

An Executor’s duties are quite onerous and include duties like selling assets such as the deceased’s home. An Executor should make sure that they obtain several quotes for costs involved in selling a property, for services like the real estate agent, cleaners and the sale of any household possessions that are not specifically dealt with under the Will.

We do see some law firms being appointed as executors of an estate (note: this isn’t something we do at MB) and this has both pros and cons.

One benefit to this is that the law firm is independent of the person who died and is more equipped to deal impartially with any complicated family dynamics. They also have the resources to complete the estate administration in a timely manner, whereas family members often have other responsibilities as well.

The downside of appointing a law firm as an Executor is the cost involved. They will be entitled to charge for all of the work they undertake, which can include simple administrative tasks which don’t require legal expertise.

However, if there are complicated situations – like conflict in a family, complicated asset structures or an unequal distribution of assets – it may be more appropriate to appoint a legal professional as your Executor. 

What options do people have when choosing an Executor?

Other options might be family members or a trusted, responsible friend. There is a significant amount of work that an Executor is required to undertake during estate administration, so you should carefully consider who you appoint, to ensure they carry out your wishes.  

In the Fisk episode, the granddaughter of the deceased asks to recover a recipe book from the house, stating she has inherited the treasured family cabbage recipes. Do you see this happen when sorting through an estate, where a family member is left with an item that has little value, but high sentimental value?

Many personal items have little monetary value but have significant sentimental value to the deceased and the family. The person making the Will (referred to as the testator of a Will) is able to gift specific items to specific people in their Will.  However, if these instructions are not left in the Will, they will be distributed according to the residuary estate (which is a clause that instructs who is to receive anything not specifically named in the Will; a kind of catch-all for everything left over) so they may not always go to who you want to receive these items.

Another option for items like this is to prepare a Statement of Wishes for the Executor to follow, which will outline how they want their personal effects distributed. It is important to note however that this is not legally binding on the Executor and should simply be used as a guide, but it can be helpful for these kinds of items.

Is it a common estate matter where items go missing, like the recipe book into the dumpster on Fisk?

Unfortunately, it is common in practice to be faced with situations where items of significant value have gone missing. These situations can be very difficult to resolve as the person who made the Will may have sold or given them away prior to their death, or simply lost them. In these cases, the only option is to bring an application in the court and the cost of legal fees are likely to outweigh the benefit being received.

Ideally, the Executor should go to the property to make a detailed inventory of the assets and liabilities of the estate. Importantly, before anything is disposed of, they should also consult with the beneficiaries (people named in the Will to receive a share of the estate) if there are no instructions within the Will for how items should be distributed.

While a Kapusta cookbook may be trash to some, it is treasure to others!

What is your advice for people who have a special item that they want to ensure gets passed along to the right person?

If you have a particularly sentimental item that you want to go to someone, this should be clearly outlined within your Will. Or you may wish to gift the item directly to the person you wish to receive it, while you’re still alive.   

_{This content is not endorsed by the ABC and Maurice Blackburn has no association with the ABC. Views and legal commentary are our own.}