A will is a legal document that dictates how the property of a deceased person is to be distributed amongst his friends and families. It is drafted by the deceased before his death, and it may identify that specific assets go to specific people. During the time between when a person drafts a will and when he dies, the will maker may make verbal gifts of property, which are referenced in the will, to other people. As a result, there may be some confusion regarding who receives the property -- the person named in the will -- or the person who received the verbal gift.
Types of Gifts
An inter-vivos gift is one that a person makes while he is alive. For an inter-vivos gift to be valid, the donor must intend to make a gift and deliver the property to the intended recipient, who must then accept the gift. Once an inter-vivos gift is made, the donor loses all rights to the property and cannot take it back. A causa mortis gift is a transfer made by a person because he thinks he is going to die. The donor does not actually have to be dying. The requirements for completing a causa mortis gift are the same as an inter-vivos. However, a donor can revoke a causa mortis gift at any time. A causa mortis gift will also automatically be revoked if the circumstances that made the person believe he was going to die are resolved.
When Gifts Supersede the Will
A will only controls a person’s probate property; assets that are validly transferred as gifts prior to death are not probate. Common reasons for a gift not to be validly executed include incomplete delivery -- or, in the case of a causa mortis gift, the person did not die due to the circumstances that caused him to make the gift. For all gifts, delivery is incomplete until the recipient receives the property. Although it is possible for real estate to be transferred verbally, generally the Statute of Frauds requires a transfer of land to be executed with a written document or deed. So if real estate is only gifted verbally, it has probably not been accurately delivered and the will would supersede the verbal gift.
Read More: Does a Will Supersede a Gifted Deed?
Benefits of Gifts
By transferring property that is listed in a will as a gift, a person can achieve two goals. First, it is an easy way to amend a will. Instead of rewriting the will so that a new person gets the property, a person can just transfer the property outright. Also, probate can be a time consuming process, and a person may not receive property from a will for a long time period of time. By gifting the property, the asset is kept out of probate and the recipient gets it immediately.
If a person gifts property while he is alive that he specifically left to another person in his will, that particular provision in the will is “adeemed.” This means that part of the will is void, while the rest of the document remains valid. The person who was promised the gifted item in the will does not receive another item or cash from the decedent’s estate as compensation.
- National Paralegal College: Historical Overview of Wills
- National Paralegal College: Inter-Vivos Gifts
- National Paralegal College: Gifts Causa Mortis
- National Paralegal College: Items Not Disposed of By a Will (Nonprobate Property)
- Superior Court of California – County of Sacramento: Decedents’ Estate
John Cromwell specializes in financial, legal and small business issues. Cromwell holds a bachelor's and master's degree in accounting, as well as a Juris Doctor. He is currently a co-founder of two businesses.