Regarding gifts and assets

[jtjumper]

What is the name of your state (only U.S. law)? Michigan

My mother recently passed away, several months ago. Before passing, she told my aunt and uncle to give some money she had to my sister. Before my sister arrived from out of state, my mother passed away. After my sister arrived, my aunt and uncle gave the money to my sister. My sister ended up using most of that money on funeral and probate expenses. The lawyer our family hired to help handle probate created an inventory of assets for the estate. My question is this: Should the money given to my sister be included in the listing of assets for the estate?

 

[adjusterjack]

The lawyer should be the one one answering that question.

But, no, I don't think so.

The money was given away before death so it was no longer part of the estate.

What your aunt and uncle did with it is their business.

 

[Zigner]

To take things a step further, sister could seek compensation from the estate for the funeral expenses she paid.

 

[NIV]

Some of it depends on the purpose of the question being asked.

1. More facts would be needed to know if the gift was complete. Common law would require transfer and acceptance of the recipient. Transfer may not have happened before death in our facts. Tax law would require the "donor parts with dominion and control of a property and has no power to change such disposition". Handing it to another for yet another's use may or may not be enough.

2. More facts might also be needed to see if 205.201 Sec.1(1)(c) applies. http://www.legislature.mi.gov/(S(jznfhki1ivleddqv3nz3gzbl))/mileg.aspx?page=getObject&objectName=mcl-205-201

 

[Zigner]

The money was gifted to the daughter through a trust (of sorts). Once mom handed it over, the money became the daughter's.

If I hand $50 to my dad and say "give this to my sister when you see her, it's her birthday present", does that mean I still retain control of it?

 

[NIV]

The money was gifted to the daughter through a trust (of sorts). Once mom handed it over, the money became the daughter's.

If I hand $50 to my dad and say "give this to my sister when you see her, it's her birthday present", does that mean I still retain control of it?

I don't know, does it? If tomorrow I find dad isn't going to see sister for a month and I will see sister on her birthday so I ask him for the money so I can give it to her on her birthday; will he give it back? If he doesn't, who can sue him for the money?

Trust theory is an argument, not an answer. To even know if the agreement would rise to he level of a (later court ordered) constructive trust we would need more facts. Like, why jtjumper is asking and the amount. If we are talking about family unity over $100, that is an easy issue. If you are talking about the preparation of estate and/or transfer tax returns over $10,000, that is harder and might require more than internet assurance.

 

[latigo]

What is the name of your state (only U.S. law)? Michigan

My mother recently passed away, several months ago. Before passing, she told my aunt and uncle to give some money she had to my sister. Before my sister arrived from out of state, my mother passed away. After my sister arrived, my aunt and uncle gave the money to my sister. My sister ended up using most of that money on funeral and probate expenses. The lawyer our family hired to help handle probate created an inventory of assets for the estate. My question is this: Should the money given to my sister be included in the listing of assets for the estate?

Whether it was part of the estate depends on the circumstances whereby "aunt and uncle" came into control of the money. Two elements must be present in combination to establish a gift of personal property. The benefactor's intention to make the gift (donative intent) and the delivery of the subject of the gift. In this sense delivery means to permanently surrender possession and control over the gifted item. If either donative intent or deliver is absent, there is no gift.

However there can be what is known as a constructive delivery. Example, where the donee is already in possession of the item when the donative intent is expressed. Or as here, if aunt and uncle were in possession of mom's money and she instructed them to make a gift of it to sister.

In other words, had mom earmarked a certain amount of money in aunt and uncles control to be delivered to sister, the ownership of the money would pass to sister (outside the estate) regardless of whether it was handed over to sister before or following mom's demise.

All in my natural born humble opinion.