As you’re making your Nolo’s Online Will, if you leave a gift to more than one person, the program will ask you how you whether you want the beneficiaries to share the gift equally or unequally. If you want to divide it equally, you’re done with that gift. If you want them to share it unequally, you will need to indicate how you want the beneficiaries to share the gift. Here is some information to help you decide how to leave shared gifts.
First, before you decide to split up an item, make sure that the item is easily divided. For example, money in a bank account is easily divided, but an antique dresser is not. If you leave a difficult-to-divide gift to more than one person, it will be up to your executor to figure out how to split it. For property that cannot be divided (your dog) or property that requires discretion to divide (like "my art collection"), it may be wiser to leave items separately.
One option for difficult-to-divide items is to have your executor sell the item (or group of items) and then divide the proceeds among the beneficiaries. If that’s what you want you can leave a note about this preference in a letter to your survivors– see “Offering Suggestions for Shared Gifts,” below.
Similarly, if you’re leaving either your “entire estate” or your “residuary estate” to one or more people, that property will liklely include some items that are easy to divide and some that aren’t. It will be up to your executor to divide the property in the shares you indicate in your will. Your executor would probably appreciate some thoughts about what you have in mind. (See below.)
If you choose to leave a shared gift in uneven amounts, you must next indicate what percent of the gift each person should get. For each gift, your beneficiaries shares must add up to 100%.
EXAMPLE: Fred Wagner wants to leave an undeveloped real estate parcel to his three children, Mary, Sue and Peter. Because he has already paid for Mary’s graduate school education, he wants to give Sue and Peter greater percentages of the property in case they want to go back to school, too. He lists his children and the share of his property to which they are entitled this way: Mary Wagner (20%), Susan Wagner (40%) and Peter Wagner (40%).
If you want to make gifts that don’t easily add up to 100%, you may have to get creative. For example, if you want to give 50% to Sue, and then divide the rest evenly between Sally, Joe, and Bob, you could use decimals to get close to an even division—like this:
Or like this:
If you are leaving a shared gift you may have some thoughts on how you’d like your beneficiaries to divide up the property. Of course, you can use your will to control the size of the share that each beneficiary gets, but that still leaves your survivors to figure out who gets which specific assets. For example, if you leave your entire estate to be shared equally by your three children, how should they decide who gets the house, who gets the bank accounts and who gets the cars?
You can use a letter to make suggestions to your beneficiaries about how they might go about dividing up shared gifts. Your suggestions will not have any legal weight, but you can give beneficiaries helpful guidance. For example, you may want to suggest a fair way of figuring it out, such as lottery for the highly coveted items. Whatever suggestions you give, be very careful not to contradict any of the gifts you make in your will. Doing so could cause confusion and promote conflicts and hurt feelings among beneficiaries. Worse, it could lead to a legal challenge to your will.
For example, you could say something like this:
Your will includes a statement to cover any shared gifts for which the shares are not indicated:
This clause states that if you leave a gift to two or more beneficiaries without stating the percentage each should receive, the beneficiaries will share the gift equally. This clause is included as a catchall; you can determine the shares for almost every shared gift.