Legal Question in Wills and Trusts in Virginia
Is a prior gift considered part of estate disbursement?
My husband was given monies by his mother to put a new roof onto our home. Later, she told him that he needn't worry about paying it back, for him to consider it a gift for his birthday. Now, 4 years later, and two years past her death, his brother, the executor, is claiming that this ''gift'' was and early disbursement of her estate and is owed back by my husband because he originally ASKED for the money. There is no written documetation only a check stub for the work that was done.
Is this correct?
2 Answers from Attorneys
Re: Is a prior gift considered part of estate disbursement?
No, what you've described would be a gift and not a premature distribution unless the donor(your husband's mother) had clearly indicated that it was to be considered such, which, apparently was just the opposite of her intention. Therefore, your husband, if he wishes to contest this determination by the executor, should put the latter formally on notice that he will take the matter up with the commissioner of accounts, if necessary, unless he receives the full share of the estate to which he is entitled---and with no amounts for the alleged gift deducted therefrom.
Re: Is a prior gift considered part of estate disbursement?
Like many such things, this is a question that is decided by the particular circumstances in each case. Specifically, what did your mother intend? The question of your mother's intent cannot be answered with an automatic result but must be decided by the specific evidnece and facts of the particular case. Therefore the question has to be decided by the specific facts and evidence in your case.
It is certainly possible for a person to give an "advance" inheritance to an heir. However, the intention for this to happen must be clear. In other words, the mother would have to specifically intend that result, to intend that the son would NOT share in the inheritance at her death because of this gift. It is not something that can happen accidentally or by the interpretation of people later, after her death. The executor cannot treat the gift as an advance. It must have been the mother's actual plan and intention that the son NOT share in her estate because of this advance gift.
What you describe does not sound like the mother intended this result. For one thing, you mention that the executor is looking to the fact that the son asked for this money to fix the roof. Actually, that factor would have the opposite result. If the gift were an advance inheritance, it would have to be the mother's idea and plan to give the son his inheritance now, instead of later. The fact that it was NOT her idea cuts against it being an advance, not in favor of that.
However, then the mother decided to forgive the loan and turn it into a gift. Everything will depend on what she intended when she did that.
Because a will must be in writing with signatures by witnesses, etc., normally an advance needs to also be documented in writing.
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