Just promising someone that pair of gold earrings that she has always coveted is not enough to ensure she will receive them. That coffee table promised to you by your aunt may not be yours if your cousin feels differently.
It is a part of everyday life to take people at their word – whether your significant other promises to pick you up after work, your best friend says she’ll take care of your dog for the weekend, or your sister agrees to lend you money, promises from those close to you are something to rely upon. Because of this people often assume that their promises will be enforced when they die. Unfortunately, your loved one's desire or intent to give will not be legally enforced unless extra steps are taken.
If you want to give someone a gift, the process is pretty straight forward if you give it to them now. As long as intent to make the transfer exists, along with actual or constructive delivery, the gift is given and ownership is transferred (though there can be tax implications depending on the size of the gift). Whether it be a car or a down payment on a house, substantial gifts can be given to those you care about without legal problems popping up.
However, the process of gifting changes when the gift is meant to be received after your death. The general rule of thumb is that wills are the “be all and end all” of division of property-- a clear and well-written will can effectively distribute property with minimal dispute and confusion. If a gift isn’t written into the will, the intended recipient has NO legal claim to it. Instead of your daughter getting your wedding ring and your son getting your silver as you always wanted, the lack of clarification in a will can lead to family in-fighting, hurt feelings and a possibility of incorrect distribution.
There are a couple of exceptions to this rule of a will being the final document that stated one's intent. The largest exception is raised when an individual dies without a will or with an unclear or outdated one. But for the most part, the law that governs the distribution of property still won’t give any weight to unsubstantiated promises. This means that the best way to make sure that your coffee table ends up in good hands is to put it explicitly in your will. If your will gives property or money to someone --even if you have had a falling out or would really rather it went to someone else-- the document will still be followed to the letter.
The other main exception to the “no will, no way” rule is in the case of a deathbed gift. Individuals can, in anticipation of their imminent death, give a gift conditional on actually dying. For such a gift to be valid, an individual has to be sick, there has to be a delivery of the actual gift, and for the transfer to be complete the donor has to actually die. The gift will be revocable if the donor ends up living. As always, proving that the gift was valid can be tricky without witnesses or written confirmation, but a gift given at a deathbed still counts. The laws surrounding gifts and estate law put a high premium on the written down and provable, so the best option is to make sure that your will is up to date.
If you would like to discuss a will or estate plan and live in the surrounding counties of Montgomery, Philadelphia, or Delaware County, Pennsylvania or New Jersey, please contact us.