Gifting in a Will - Ogborne Law

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Personal Gift in a Will, What is it?

A personal gift in a will could be defined as: property that is appropriated from one individual to another through the utilization of a genuine will document. Because the gift is going to be appropriated using the will device, the gift is only going to transfer to the recipient when the will’s creator (the “testator”) passes away.

Through estate laws, these gifts are deemed “personal” since they are transferred from one individual to another specific individual, instead of a common organization such as a charity.

There are a lot of reasons why an individual may want to distribute gifts through their will upon their passing instead of throughout their lifetime. A normal situation is in which the property owner is going to still be using the asset or property while they are living (like a residential home or their daily driver). They might want to transfer the property only after their passing so they can continually use the property.

What are Ways to Distribute Personal Gifts Through a Will?

There are a several various ways a testator can allocate gifts through a will. These are going to depend on the terminology used to describe the property, in addition to the way in which the owner categorizes the gift. State statutes might also have different requirements concerning this.

Generally, there are three primary ways to classify personal gifts in a will:

Specific Gifts: These are clarified in detail and undeniably recognized as a specific piece. For instance, should the property owner decide to give his “1982 Chevy truck to my son James”, this would most likely be deemed as a specific gift. The gift guidelines would only be fulfilled if James specifically receives the 1982 truck, and not a different vehicle. When there are two different 1982 trucks, then for it to still be a specific gift, then the will should declare that James receives the green 1982 truck. A specific gift can also be referred to by other names, like a specific devise.
General Gifts: These are ones that aren’t detailed clearly enough in the will to be associated with a particular item. For instance, if the testator declares in their will that they wish to give “one of my motorcycles” to “my daughter April”, this is going to probably be deemed a general gift. Distributing any of the person’s motorcycles to April would fulfill the gift instructions.
Residual Gifts: This deals with the allocation of the property that’s left over after the specific and general gifts have all been allocated. For instance, the property owner’s will could declare, “I leave the rest of my property to my cousin Sherri.” Cousin Sherri will then get whatever property is left over, oftentimes decreased to one lump monetary sum.

Personal Gifts

The differences between specific, general, and residual gifts become very vital when one of the gift conditions is not fulfilled. For example, if the property owner decided to give a particular necklace as a specific gift, but they didn’t have the necklace any longer at the time of passing, it impacts the whole chain of property distribution (particularly residual gifts).

Therefore, it is important that personal gifts through a will be created clearly and carefully to guarantee that the individual’s desires are going to be followed as they would wish them to be. When in doubt, being as detailed as possible can help guarantee that the right gift is going to go to the right individual.

Should I Transfer a Gift in a Will or Throughout My Lifetime?

A gift that gets distributed through a will after passing is referred to as a “testamentary gift.” However, a gift that is allocated while the individual is still living is called as an “inter vivos gift.” These gifts are usually transferred through other means by a will, like a living trust.

The decision of whether to distribute gifts throughout life or following demise is mostly a matter of personal preference. As forementioned, if the possessor of the property is going to still be using their asset up until their passing, then it might be better to pass the gift using a will.

However, should they want to have the asset allocated to an inheritor while they’re still living, then it might be better to gift it as an inter vivos gift instead of a testamentary gift. Many of the aspects of a testamentary gift and an inter vivos gift include:

For Testamentary Gifts:

Often Revocable: A testamentary gift can often be revoked or dropped at the request of the donor;
Donor Keeps Possession: Because the gift is going to only be transferred upon the testator’s demise, they are able to still use the property throughout their lifetime; and
Conditional: The donor can often place stipulations on the gift (for instance, Amelia will receive my ring only when she turns eighteen).

For Inter Vivos Gifts:

Immediate Enjoyment: Both the recipient and the donor would have the fulfillment of witnessing the gift being used while their donor is still living;
Irrevocable: These gifts are continual and irrevocable. Meaning that the donor can’t reclaim the asset once transferred to; and
Tax Breaks: Some of these types of gifts are related to varied benefits such as tax breaks.

Once more, the secret to proper distribution of personal gifts in a will is comprehensive, through planning. Whereas no one can anticipate every potential situation down the road, it is better to manage gifts with comprehensive planning, instead of distributing them haphazardly.

Do I Need an Attorney if I Have Challenges with Personal Gifts Through a Will?

Should you have questions or legal matters concerning the distribution of personal gifts through your will, you might want to speak with a will attorney for guidance. An attorney can help counsel you on how to distribute your gifts in accordance with the way you wish. As an alternative, if you are going to be receiving a personal gift through a will, an attorney can help protect your interests should a challenge or dispute arise.

Source:

Rivera, J. (2019, August 30). Personal gifts in a will. LegalMatch Law Library. Retrieved April 19, 2023, from https://www.legalmatch.com/law-library/article/personal-gifts-in-a-will.html

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