When someone dies, who gets their belongings? Many people will be surprised, if not disappointed, by the answer.
Take the example of a surviving spouse who wishes to sell valuable family heirlooms her deceased husband had inherited from his side of the family to help make ends meet while the probate process is ongoing.
Take the example of an only child who wishes to keep memories of her mother alive immediately following her death by wearing her jewelry and clothes.
Take the example of siblings who are arguing over which of them has a right to the furniture and artwork from their deceased parent’s home.
The commonality between all the individuals in these examples is that none of them have an automatic entitlement to their relative’s personal belongings after death. Even though they may stand to eventually inherit the personal belongings in question, they cannot simply go and claim them. This could be considered stealing. For better or worse, the process involved tends to be considerably more complex.
Let’s reconsider the examples above. What if the family heirlooms the surviving spouse wishes to sell are not community property? What if the clothes and jewelry the only child wishes to wear were willed to her aunt by her mother? What if the siblings who are arguing over who gets what from their parent’s home actually are entitled to equal portions of the estate?
These hypotheticals illustrate why law and order is needed when dividing personal property after death. If you were a decedent’s closest family member, it may not make sense to you why you can’t just take their personal belongings after death. The reality is that you may not be entitled to them, and taking things you’re not entitled to could result in undesirable consequences for you down the road.
Your intentions when taking your loved one’s personal belongings after death could be completely innocent. Perhaps being in possession of their personal belongings would help you to grieve their loss. But it is something you should avoid doing unless you’ve been given the go-ahead by the personal representative (i.e., executor or administrator) of your loved one’s estate or a qualified probate attorney.
At an emotionally charged time, such as after the loss of a loved one, it can be difficult to make rational decisions. Having an attorney by your side during trust/estate administration can not only help to promote smooth sailing, but it can help ensure your rights as an heir and/or beneficiary are upheld.
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Understanding Property Types — What Is Considered Personal Property in an Estate?
To understand your rights and limitations around a loved one’s personal property after death, you must first understand what personal property is — and isn’t.
For example, suppose a decedent’s will reads: “I leave all my tangible personal property to my wife, who can divide it among family members as she sees fit.”
In this example, it would be important for you to not only know which of the decedent’s items would be considered their personal property, but which items would be considered their tangible personal property as well.
While the fact that an item is personal property as opposed to real property, or tangible personal property as opposed to intangible personal property may not make a difference in who is entitled to it, it could, for example, make a difference in how it is transferred or taxed.
What Is Tangible Personal Property?
As you may have already inferred, tangible personal property (also known as chattels) refers to property that you can touch, hold and move from one location to another.
Most of the items people handle or use on a day-to-day basis, such as their clothing, furniture or even their car, generally are considered tangible personal property.
Here are some examples of tangible personal property:
- Clothing
- Furniture
- Artwork
- Vehicles
- Jewelry
- Electronic equipment
- Musical instruments
- Books
- Kitchen appliances
What Is Intangible Personal Property?
Intangible personal property refers to property that carries value but lacks a physical existence, and therefore, cannot be touched or held.
Most types of financial accounts would be considered intangible personal property, as would assets such as business holdings and trademarks.
Here are some examples of intangible personal property:
- Bank accounts
- Stocks and bonds
- Intellectual property (e.g., patents, copyrights and trademarks)
- Business holdings or franchises
- Partnership interests
Remember, even though you cannot physically see, touch or hold intangible personal property, it does not mean it carries no value. In many cases, it may carry even more value than tangible personal property.
What Is Real Property?
Real property (also sometimes referred to as real estate) consists of land and any fixtures permanently affixed to it, including everything from natural resources to man-made structures.
When a person owns real property, they generally are entitled to occupy, transfer, sell, lease or enjoy the property in any way they wish (so long as they are in compliance with all applicable laws).
Transferring real property out of an estate is generally much more complex than transferring personal property because the deed to the property will need to be changed to reflect the name(s) of the new owner(s).
What Is the Difference Between Real Property and Personal Property?
As you may have gathered, the difference between real property and personal property boils down to whether the property in question involves land.
If the property is land or involves anything affixed to the land, it is real property. All other property in a deceased person’s estate generally is considered either tangible personal property or intangible personal property.
When Someone Dies, Who Gets Their Belongings?
Most people understand that they cannot just assume ownership of someone’s most valuable assets (e.g., their vehicle, home, bank and retirement accounts) immediately following their death. While they may not know the specifics of the process involved, they know there is a process.
When it comes to assuming ownership of someone’s personal belongings after death, however, people don’t always have a clear understanding of what’s allowed and what isn’t.
In general, regardless of their relation to the deceased, a person cannot legally take any estate assets (including personal property) without those assets passing through the probate process first. This is true whether the deceased died without a will or with a will.
If the decedent in question had a trust, trust assets (including any personal property held by the trust) generally can be distributed by the successor trustee without the assets first passing through probate. There is a caveat, however. Trust assets still must be accounted for, and they must be distributed in accordance with the terms of the trust. In other words, trust beneficiaries still would not be able to just take them; they would have to wait for the trustee to formally distribute the assets to them.
In the following two sections, we review how personal belongings after death without a will are disposed of compared to personal belongings after death with a will.
Disposition of Personal Belongings After Death Without a Will
When a person dies without a will or if their will fails to provide instructions surrounding their personal property, the property will likely become a part of the decedent’s intestate estate and be distributed according to California’s intestate succession statutes, which can be found in Probate Code sections 6400 – 6455.
Dying without a will usually means the personal representative of the estate will be an administrator instead of an executor. Unlike an executor, who is bound to making distributions according to the terms of a decedent’s will, an administrator is bound to making distributions according to intestate succession laws.
Wills can be contested, but intestate succession laws can’t, which means that if you are one of the closest living heirs of a decedent, you likely will be receiving at least some of their personal property.
Ultimately, how much personal property you receive will depend on all the following factors:
- How many direct heirs the decedent has
- Your relation to the decedent
- The character of the personal property
In general, under intestate succession, the decedent’s surviving spouse (if they had one) will be entitled to the largest share of the decedent’s personal and real property. This is because the surviving spouse is entitled to 100% of the community property (any property acquired during marriage by either partner, with some exceptions) and a portion of the decedent’s separate property (any property the decedent acquired prior to marriage or received by way of gift or inheritance).
Keystone’s intestate succession chart can help you gauge what percentage of a decedent’s community and separate property you may be entitled to, but it likely won’t help you figure out which items of personal property or real properties you’ll receive, or whether you’ll receive the items themselves or their cash value.
If you have a sentimental attachment to certain items of personal property or just wish to receive the items themselves instead of their value in cash, you should let the administrator of the estate know at the start of the probate process. It is ideal to make such requests in writing.
It’s worth noting that under some circumstances a formal probate could potentially be bypassed with the use of a simplified probate procedure, such as a small estate affidavit or spousal property petition. However, keep in mind that these simplified probate procedures are generally reserved for estates valued at $184,500 or less.
A probate attorney can help you both figure out whether the estate at issue qualifies for a simplified probate procedure and what personal property you may be entitled to under intestate succession. Additionally, they can help enforce your rights as an heir during the process.
Disposition of Personal Belongings After Death With a Will
When a person dies with a will that provides instructions surrounding their personal property, it may be easier for you to figure out which items of personal property you may be entitled to receive from the decedent’s estate. Not only that, but it could also make the job of the executor a little simpler as well.
Though, just because a decedent has a will, it doesn’t mean they necessarily will have specified who should receive their personal property. For instance, their will may fail to mention their personal property, instead stating: “All the residue should be equally divided between my two children.”
In this context, residue would mean all the assets that remain in the estate after all the decedent’s debts have been paid and assets with specific beneficiaries have been distributed. In such an instance, the decision of how to distribute the personal property to you and your sibling would ultimately lie with the executor.
While you could always express to the executor which items of personal property you would like to receive, you also could work it out with your sibling after the items have already been distributed.
Make sure to let the executor know your preferences surrounding personal property early in the probate process, as the executor could always opt to sell the personal property and distribute the proceeds from the sale to you and your sibling. Do your best to make all requests to the executor in writing.
Remember, while an executor, depending on whether they have full or limited authority, will be required to notify you in advance or seek court permission prior to making a sale of real property, the same may not be required of them when it comes to personal property.
In the same vein, keep in mind that just because certain assets qualify as personal property, it doesn’t mean they qualify as estate property. Consider a deceased person’s bank accounts. If they had designated a beneficiary on the bank account, that beneficiary could claim the contents of the account immediately following the account owner’s death without the account becoming a part of their estate or having to pass through probate.
That said, the executor is required to create an inventory of estate assets and their value at the time of the decedent’s death at the start of administration. By reviewing this inventory, you will be able to easily gauge which of a decedent’s assets belong to their estate and will be distributed as such.
Lastly, note that an estate could become subject to a will dispute. If a will contest is brought, for example, the disposition of assets not only could change but the probate process could be prolonged.
When to Dispose of Deceased Belongings
You may be wondering when to start the process of disposing of your deceased loved one’s belongings. Fortunately or unfortunately, this may not be a task you have to worry about at all.
Typically, the only individual that needs to be concerned with when to dispose of deceased belongings is the personal representative of the deceased person’s estate. They generally initiate the probate process and carry it to completion, at which point they can formally dispose of the decedent’s personal belongings.
How long do you have to file probate after death? While it would not be advisable to wait this long, you typically have one year from the date of the decedent’s death to initiate the probate process. If the personal representative is not stepping up to the plate, a family member of the deceased or other interested party could potentially file for probate in their place.
Once the probate process is initiated, the personal representative generally will have one year from their date of appointment (which usually occurs on the date of the initial probate proceeding) to close the estate and distribute its assets. If they file a federal estate tax on behalf of the estate, they could petition the court for an additional six months (totaling 18 months) to complete probate.
Removing Items From House After Death — No Will
When there is no will, there generally will be an administrator presiding over the decedent’s intestate estate. They may be wondering when it is the right time to start removing items from the decedent’s house to start distributing to the decedent’s heirs.
Unless the administrator plans to sell items of personal property, they may not need to remove them from the home at all. In fact, they should do the opposite. They should take steps to secure and preserve the items so they are not stolen and remain in the condition they were in at the time of the decedent’s death. They may wish to be extra cautious and lock up the decedent’s house to ensure no one enters to remove the items.
Administrators should remember that until they have created an inventory of assets and valued them, they cannot start selling them, even if they seem to be insignificant items of personal property, such as clothing and electronics.
Additionally, they must remain careful not to formally or informally dispose of any assets, including personal property items, until after administration and probate costs have been paid, as well as the decedent’s creditors.
Removing Items From House After Death — With a Will
When there is a will, there generally will be an executor presiding over the decedent’s testate estate. They also may be wondering when it is the right time to start removing items from the decedent’s house to start distributing to the decedent’s intended beneficiaries.
As we mentioned in the previous section, executors, just like administrators, should be more concerned with securing and preserving the decedent’s assets than they are with removing them from their home.
Executors generally are subject to the same rules as administrators when it comes to accounting for the decedent’s assets, paying administration expenses and settling the decedent’s debts. In essence, before they start distributing any items from the decedent’s house, they should make sure all the other steps of the probate process have been completed.
What Are the Consequences of Wrongfully Taking Personal Belongings After Death?
It may seem like an innocent act to take a deceased loved one’s personal property from their home, but in the eyes of the court, it could be regarded as stealing.
Suppose your uncle had an expensive set of golf clubs that you’d always wanted. After he died, you took them for yourself, believing no one would miss them. Not only had your uncle always promised them to you, but your aunt and cousins don’t play golf, so you thought you’d be able to make better use of them. Unfortunately, your uncle died without a will, which meant you had no entitlement to them under intestate succession. To the administrator of his estate, it seemed like you misappropriated them.
While the above scenario may not result in anything more than you having to return the clubs, it’s possible there could be additional financial, legal or emotional consequences. For example, if you lost the clubs or sold them, you could be liable for financial damages to the estate. Worst of all, you could create a permanent rift between you and your extended family.
All in all, if there are personal belongings after death that you have your eye on, it is always better to err on the side of caution and either speak to a probate attorney, the personal representative of the estate or the estate beneficiary or heir who is entitled to them about whether anything could be worked out to help you receive them at the close of probate.
FAQs: Distribution of Personal Property After Death
Remember, while personal property can be much simpler to distribute than real property, it generally is not subject to special laws. It is subject to the same steps of the probate process as other estate assets.
That said, if you continue to have questions surrounding the distribution of personal property after death, refer to our FAQs below.
What happens to your belongings when you die alone?
If you die alone, i.e., you have no beneficiaries or surviving heirs, your belongings could potentially pass to your state.
It, however, is important to remember that very few people die with no surviving heirs. For example, your niece or great aunt would be entitled to receive your belongings before the state.
If you are worried about what will happen to your personal belongings after your passing, you always have the option to create a will. In your will, you can dispose of your personal belongings to friends, charities or any beneficiaries of your choosing.
How is dividing personal property after death different from dividing other types of property?
There isn’t a huge difference in dividing personal property after death compared to other types of property, besides the fact that dividing personal property may be easier.
For example, if a house were willed to pass to multiple beneficiaries, the personal representative may be forced to sell the house since a house rarely can be fairly and equitably divided. Once they finalize the sale, the proceeds from the sale may be divided among beneficiaries according to their percentage interests in the house.
Personal property, on the other hand, may be easier to form agreements around. For instance, even if a will instructs for a parent’s personal property to be divided equally between you and your sibling, the personal representative wouldn’t necessarily need to sell the personal property to carry out the terms of the will. Rather, they could distribute all of it to you and your sibling, and the two of you could decide amongst yourselves who gets what.
That said, dividing personal property after death also has the potential to get complicated. It really just depends on whether or not there is a will and on how willing the beneficiaries and/or heirs are to compromise with one another.
Who will get property after a person’s death if they left behind no family?
Who will get personal property after a person’s death if they left behind no family will depend on whether the deceased person had a will, and if so, whether the will provides for anyone to inherit their personal property.
If the deceased person did not have a will, their personal property could potentially pass to the state, but a distant relative is more likely to inherit their property under intestate succession laws than their state.
Is keeping the clothes of the deceased person allowed?
Clothing can be a key element of what makes an individual who they are. As such, when a person dies, their loved ones may be curious about whether they can take their clothes, as their clothes help them feel like the person is still around even after their death.
As trivial as a deceased person’s clothes may seem, they are still considered to be their personal property, and hence, may belong to their estate. Anything in a deceased person’s estate generally must be probated, so chances are that you cannot legally take the clothes of a deceased person.
With that said, it’s worth noting that executors and administrators have the right to dispose of property of little to no value if the cost of maintaining the property exceeds the value of the property. Most clothing items are unlikely to fetch a significant sum if sold; therefore, the executor or administrator may not have a problem with a beneficiary taking items of sentimental value, so long as they ask permission first.
Who determines how to divide personal property in an estate?
While the personal representative presides over the deceased person’s estate after their death, the will is what dictates how property is to be divided among beneficiaries.
If there is no will or the will does not specify how personal property should be divided, the personal representative can decide whether to sell the property and divide the proceeds. Or they can come up with a way to divide the personal property among the beneficiaries and/or heirs in a fair way.
Have questions about your right to a person’s personal belongings after death? We have answers.
Navigating the complexities involved in how to divide personal property in an estate can be a challenge, whether you are a personal representative or a loved one of the person who passed. The process can be made even more difficult if you are dealing with personal belongings after death without a will.
Fortunately, as probate attorneys, we are experienced in helping personal representatives administer estates containing both real and personal property. We also provide much-needed support to beneficiaries and heirs during the probate process by upholding and enforcing their rights.
Learn how our skilled probate attorneys can assist with your legal issue. Call us to request a free consultation today!
