Making Sense of Inter Vivos Gifts

Inter Vivos Gifts in a Nutshell

Probate law deems inter vivos gifts as estate property gifted to a recipient while the testator is alive; such conveyance of assets will escape probate proceedings when the inter vivos transfer is lawful.

Individuals many times transfer property inter vivos to avoid paying probate taxes or to use the gift’s value as a tax credit; others make inter vivos gifts because they wish to observe the gifted property during their lifetime.

Testators cannot make inter vivo gifts after death; the law further requires givers to deliver the gift immediately and recipients to accept them while the giver is alive.

Once deliverance and acceptance of inter vivos gifts take place, the giver relinquishes all rights to the property and cannot recover ownership without the recipient’s consent.

Inter vivo gifts may further lose their legal status and be subject to probate proceedings if testators attempt to control the gifted property or try to obtain a benefit from the gift after the recipient accepts it.

Inter Vivos Gift Example

Tracy intends to give her family home to her grandson Andy. She is still alive and in good health and doesn’t want to wait for Andy to inherit her property. Tracy hires the well-practiced inter vivos gift attorneys at the Smith Law Firm to execute the deed and draw up documents that prove the estate transfer was an inter vivo gift. Andy accepts the deed and moves in after Tracy moves out to a cottage in the next county where she lives until her death a few years later.

During probate, Andy’s brother, Mad Max, discovers the estate property conveyance and hires an estate dispute attorney to seek a claim on the asset. Max’s experienced probate litigator investigates, and afterwards, advises his client that Tracy did not lawfully own the home when she died. The advocate further informs Max that Andy has absolute ownership, and because the property was a valid inter vivo gift, it will not enter probate proceedings.

Proving Entitlement

Testators must be a legal adult, alive and of sound mind and when making inter vivo gifts.

They should further establish their intent to give estate property to another in writing with language that confirms they are passing on the right of ownership with irrevocable title to the recipient.

Recipients bear the burden of proving the estate transfer was a valid inter vivo gift with a showing of evidence that proves:

• The testator intended to make a gift with intent to give up ownership and control;
• The testator delivered the property; and,
• The recipient accepted the asset while the giver was still alive.

Intent Decides Inter Vivo Gifts Dispute Claims

Will dispute litigation often asks, what did the testator intend when making the inter vivo gift? Once the decedent’s intention is clear, it’s easy to recognize who will take the property in controversy.

Probate courts hearing inter vivos claims will consider evidence that establishes the testator’s intent when he made the inter vivo gift.

Estate dispute claimants will prevail if they show the deceased never relinquished ownership and control after delivering the gift to the recipient or prove the testator transferred the inter vivo gift after death.