A gift is the act of giving something to another person without expecting anything in return. It can be an object, such as a toy or money, or even a body part for medical reasons. There are various types of gifts, including those given during a person’s lifetime (inter vivos gift) or specified in a will (testamentary gift). A completed gift is one that the giver no longer has control over, while a gift over is a gift that becomes effective after a specific time or event. Certain gifts are made for charitable purposes, while others may have conditions attached to them.
A property gift, typically given through a will, that becomes effective after the termination of a prior estate in the property, such as a life estate or fee simple determinable. For instance, John bequeaths his house to his wife, Sarah, for her lifetime, with the provision that it will then pass to their son, Don, in fee simple. This means that Don will become the owner of the house after Sarah’s death. Similarly, Martha leaves her car to her sister, Mary, for a period of five years, with the condition that if Mary dies before the five years are up, the car will then be transferred to her nephew, Tom. This implies that if Mary passes away before the completion of the five-year term, Tom will inherit ownership of the car. These examples demonstrate the functioning of a gift over, which only takes effect once the preceding estate in the property has expired or concluded. In the first example, the gift over to Don becomes effective only after Sarah’s lifetime estate has ended. In the second example, the gift over to Tom becomes effective only if Mary dies before the completion of the five-year period.
A gift over refers to a provision in a will or trust that specifies what should happen to a particular asset or property if the original beneficiary is unable to receive it.
Yes, a gift over can be included in a will or trust to ensure that the intended recipient of an asset or property is still able to receive it, even if the original beneficiary is unable to do so.
If the original beneficiary is able to receive the gift, then the gift over provision becomes void, and the asset or property will be transferred directly to the original beneficiary.
Yes, a gift over provision can be challenged in court if there are valid reasons to believe that it is invalid or unfair. However, the burden of proof lies with the party challenging the provision.
Yes, a gift over provision can be changed or revoked if the person who created the will or trust decides to do so. This can be done through a codicil to a will or an amendment to a trust.
If a gift over provision is not included, then the asset or property will be distributed according to the default rules of inheritance or the residuary clause in the will or trust.
Yes, a gift over provision can be included for any type of asset or property, including real estate, financial accounts, personal belongings, and more.
Yes, the original beneficiary can contest a gift over provision if they believe it is unfair or invalid. However, they would need to provide valid legal grounds for their challenge.
Yes, a gift over provision can be enforced if the original beneficiary is alive but unable to receive the gift due to incapacity, disability, or any other reason specified in the will or trust.
No, a gift over provision cannot be included in a living will or power of attorney. These legal documents are specifically designed to address healthcare decisions and financial matters during a person’s lifetime, not the distribution of assets after their death.
This site contains general legal information but does not constitute professional legal advice for your particular situation. Persuing this glossary does not create an attorney-client or legal adviser relationship. If you have specific questions, please consult a qualified attorney licensed in your jurisdiction.
This glossary post was last updated: 17th April 2024.
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