What to do about an estate and a pre-death gift?

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What to do about an estate and a pre-death gift?

My brother and I are co-executors of our dad’s will and co-trustees of his estate. He died last month and the estate is split 50/50. My brother recently learned that my father had given my husband and me 30K worth of gift money after my husband lost his job 2 years ago and was seriously injured and hospitalized. Our insurance coverage was minimal. Now my brother asks, “Where’s his gift?” and thinks I should “return” this money to the estate. I feel that if my dad gave us this most necessary money to keep a roof over our heads, medical bills paid and was in his right mind doing, so my brother has no claim on my gift.

Asked on October 12, 2012 under Estate Planning, California

Answers:

Catherine Blackburn / Blackburn Law Firm

Answered 9 years ago | Contributor

Your brother has no legal claim on your gift.  The gift is entirely separate from the estate.

You state that you and your brother are co-executors of your dad's will and "co-trustees of his estate."  Did your dad have both a will and a trust?  Will it be necessary to probate the will, or did your dad effectively transfer all of his assets into the trust (either by listing the trust as the owner or listing the trust as the beneficiary)?

I suspect that you and your brother are going to disagree about how to manage the estate and trust, and certainly about how to distribute your dad's assets.  I recommend that you, personally, consult a probate and trust attorney in your area immediately about this matter.  You will probably want to negotiate with your brother to appoint a neutral person as administrator of the estate and trustee of the trust.  If you brother will not agree to this, you will want to discuss your options. 

Whomever serves as executor/administrator of the estate and/or trustee of the trust should carry out the provisions of the will and trust without bringing in the gift or other personal issues.  I suspect your brother will be unwilling to do this, and your actions will always be subject to question because of this gift and your brother's resentment.

Good luck.


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