Are items that were borrrowed and not returned part of the estate?

You readers come up with the most interesting questions for me to answer! This one has to do with items that were borrowed by a family member and not yet returned when their mother passed away.

Here's the question:

Prior to my mother's death, one of my sisters took all of my mother's personal papers, documents and old photographs related to our family history. My mother told me that my sister just took these items to make copies and distribute them to the entire family. A couple of times my mother mentioned her worry that the items hadn't been returned. When my mother passed away  they still had not been returned. I asked the executor to ask her to return them as I considered them to be part of the estate but he said if I want them then I should do the asking. I then asked my lawyer's legal assistant the question and she said that anything that was not in my mother's house would not be considered part of the estate. Is my sister under any legal obligation to return them to the estate?

Before I answer the question asked by this reader, I have to comment on the fact that the legal assistant in this case is giving legal advice. Never ask legal advice from anyone but a lawyer. Legal assistants haven't been to law school. Their role is not to know the law; it's to know the paperwork and procedures for court applications and legal files.

Highly experienced legal assistants know better than to give legal advice. They know their area of expertise and they stick with it. They can give information about processes and procedures, but never the substance of the law. They know they can lose their jobs for giving legal advice.

Look at it this way. If you needed surgery and the doctor was busy, would you ask the nurse to do the surgery instead? Of course not, because they do different jobs. The nurse helps the doctor do the surgery but hasn't been trained to operate on people. Lawyers and legal assistants do different jobs too.

Ok, with that rant out of the way, let's turn to the question the reader asked. The items borrowed by the sister still belong to the mother. The fact that they were temporarily not on the mother's premises is totally irrelevant. They are part of the estate. According to the facts we have, at no time did the mother transfer ownership of the items to the sister, or intend to transfer ownership. The essence of the transaction was that ownership remained with the mother and the intention of both parties was that the items would be returned within a reasonable time.

The executor in this case is obligated to gather in all of the mother's assets, including these items.

Second hand advice is bad medicine

One of the worst things people can do for themselves and their families is to make assumptions about how the law applies to them without finding out how it really works. You can't really blame people for feeling that they are familiar with legal matters like Wills, because they hear about them all the time. Myths, urban legends and misconceptions about Wills are everywhere. Everyone has heard a few stories in the news, or anecdotes in conversations at the office watercooler about sensational estate battles.

Movies, TV shows and novels feature stories about the law, including Wills. They deal with important, fascinating legal dilemmas and are usually pretty entertaining. Unfortunately, these shows, which are after all only entertainment and not documentaries, perpetuate fictionalized ideas about how Wills work. The fact that it makes a good story doesn't make it true.

Not everyone can tell what's true and what is widely misunderstood or fictionalized for entertainment. In fact, it can be almost impossible. Unfortunately, the abundance of fictional and semi-fictional stories about Wills leads too many people to wrongly conclude that they are "safe" without taking any planning steps at all.

For example, I've often heard people confidently state that they don't need Wills because they are married and believe that their spouse will automatically get everything they own after they pass away. Others want to leave certain family members $1 because they think that will prevent the family member from suing the estate. There are dozens of these ideas being passed from person to person.

Unfortunately, none of these are particularly good ideas in terms of using the law to protect your estate and family. Though you may have heard of a case where it appears that a rule or idea applied and worked a certain way, it doesn't mean that the same thing would happen in your case.

For example, look at a case where there was a question about whether child support paid by a divorced father should continue after the divorced father's death. In that case, it turned out that the estate of the deceased father did not have to pay any support. That was the right decision for that case, but not necessarily for yours. You should not take it as a general rule that no divorced father's estate ever has to pay support, because quite often that is not the case. It all depends on the specific facts of each case.

To add to the confusion, laws dealing with Wills vary from place to place. There is no one set of laws about Wills that applies to everyone everywhere. Also, laws change over time, making it even harder to know what is true at any given time.

The person who assumes that he or she  knows the law in detail and knows how it applies to him or her without even looking into it through reliable sources is not doing anybody any favours. He or she will never know about the mistake in the Will because the mistake won't have any effect until the person dies. But the spouse, children or siblings left behind will certainly be forced to deal with it.

It's always a mistake to rely on second-hand legal advice that was tailored to someone else's specifics. This includes listening to a friend or co-worker who saw a lawyer about his own situation and then tells you about it later, even though his situation might seem similar to your own.

Legal advice is very fact-specific.  Sometimes only a tiny difference between one person's estate and another can make a difference in the advice given. Your situation is not identical to anyone else's. Relying on someone else's secondhand legal advice is like taking medicine that is prescribed for another person; it can do more harm than good.

This post is excerpted from my book "Estate Planning Through Family Meetings (Without Breaking up the Family)", Self-Counsel Press, 2010.