Legal Question in Wills and Trusts in New York

Re: ''gifts in contemplation of death''

You and your brother keep the gifts made by your mother. There is no obligation to "even out" with your brother. The gifts have no impact on the estate tax computation.

Re: ''gifts in contemplation of death''

My comdolences on your loss.

Regarding your question, your mother has the right to make gifts to you and your brother with no tax consequences for any of you up to a certain amount. i think the amount is 400,000 dollars (but it changes - goes up - every year).

However, if this was given to you as a part of a bequest made in a will, then it is still counted for tax purposes as a part of the estate. To be such a withdrawal on a future estate requires a fair amount of paperwork and you would be aware of it.

It is my job to bring up these issues, but this is an unlikely scenario and you need not consider it.

You are welcome to a consultation for no fee at my offices at 42 west 44th street, NY,NY. Please call for an appointment first (646) 591-5786.

Re: ''gifts in contemplation of death''

While the value of the gifts may impact an estate tax calculation (they should not as they were less than the allowable annual exclusion of $10M per donee), if they were, in fact, gifts, your mother was free to make them unequal. Even if used in the tax calculation, there is no requirement to equalize between the brothers. However, as a matter of good practice (again, not legally required) if the inclusion does cause a tax or increase the tax, I suggest that the tax consequence, if any, be prorated to the amount of the gifts generating the tax. Even this may not be required by the language contained in the Will, if taxes are applicable.