Does a Verbal Gift Supersede a Will?

By John Cromwell

A will is a legal document that dictates how the property of a deceased person is to be distributed amongst his friends and families. It is drafted by the deceased before his death, and it may identify that specific assets go to specific people. During the time between when a person drafts a will and when he dies, the will maker may make verbal gifts of property, which are referenced in the will, to other people. As a result, there may be some confusion regarding who receives the property -- the person named in the will -- or the person who received the verbal gift.

A will is a legal document that dictates how the property of a deceased person is to be distributed amongst his friends and families. It is drafted by the deceased before his death, and it may identify that specific assets go to specific people. During the time between when a person drafts a will and when he dies, the will maker may make verbal gifts of property, which are referenced in the will, to other people. As a result, there may be some confusion regarding who receives the property -- the person named in the will -- or the person who received the verbal gift.

Types of Gifts

An inter-vivos gift is one that a person makes while he is alive. For an inter-vivos gift to be valid, the donor must intend to make a gift and deliver the property to the intended recipient, who must then accept the gift. Once an inter-vivos gift is made, the donor loses all rights to the property and cannot take it back. A causa mortis gift is a transfer made by a person because he thinks he is going to die. The donor does not actually have to be dying. The requirements for completing a causa mortis gift are the same as an inter-vivos. However, a donor can revoke a causa mortis gift at any time. A causa mortis gift will also automatically be revoked if the circumstances that made the person believe he was going to die are resolved.

Get a free, confidential bankruptcy evaluation. Learn More

When Gifts Supersede the Will

A will only controls a person’s probate property; assets that are validly transferred as gifts prior to death are not probate. Common reasons for a gift not to be validly executed include incomplete delivery -- or, in the case of a causa mortis gift, the person did not die due to the circumstances that caused him to make the gift. For all gifts, delivery is incomplete until the recipient receives the property. Although it is possible for real estate to be transferred verbally, generally the Statute of Frauds requires a transfer of land to be executed with a written document or deed. So if real estate is only gifted verbally, it has probably not been accurately delivered and the will would supersede the verbal gift.

Benefits of Gifts

By transferring property that is listed in a will as a gift, a person can achieve two goals. First, it is an easy way to amend a will. Instead of rewriting the will so that a new person gets the property, a person can just transfer the property outright. Also, probate can be a time consuming process, and a person may not receive property from a will for a long time period of time. By gifting the property, the asset is kept out of probate and the recipient gets it immediately.

Ademption

If a person gifts property while he is alive that he specifically left to another person in his will, that particular provision in the will is “adeemed.” This means that part of the will is void, while the rest of the document remains valid. The person who was promised the gifted item in the will does not receive another item or cash from the decedent’s estate as compensation.

Get a free, confidential bankruptcy evaluation. Learn More
Does a Last Will & Testament Supersede Other Documents?

References

Resources

Related articles

Contesting a Will in Kansas

In Kansas, only an heir or beneficiary may contest a will. An heir is a relative who would be entitled to an inheritance if a will does not exist or is rendered invalid, such as a surviving spouse or children of the deceased. A beneficiary is someone designated in a will to receive property or funds. The probate court will allow a hearing challenging a will and evaluate testimony from at least two witnesses, either in person, by affidavit or by deposition.

How Is a Beneficiary Removed from a Will?

When a person is named in a will, he is called a beneficiary. Heirs, on the other hand, are individuals who stand to inherit from a relative who failed to make a will; thus, leaving inheritance division to the laws of intestate succession. Testators, or will makers, may remove beneficiaries from wills by executing specific documents that effectively disinherit the beneficiary -- usually by express terms.

What if an Executor of an Estate Destroys the Decedent's Last Will & Testament?

When a person draws up her will, she may think her work is done. A valid will sets out a road map as to what will happen to her property when she dies, naming beneficiaries and an executor to shepherd the will through probate. However, it is possible that an executor could destroy a will with or without the maker's consent.

Related articles

Does a Will Override a Warranty Deed?

Wills and warranty deeds are two methods of transferring real estate. Wills transfer the probate property of a decedent ...

Does a Will Supersede a Gifted Deed?

Beneficiaries under a will may be disappointed if they discover upon the death of the maker of the will that he had ...

How to Make a Will Null and Void

A person generally drafts a will to ensure that when she dies, her property goes to the people she wants to have it ...

How to Prove a Will When Your Subscribing Witnesses Are All Dead or Unavailable

Wills can be an effective estate planning tool for distributing property after your death. But, for its terms to be ...

Browse by category
Ready to Begin? GET STARTED