Should I be entitled to a gift given to me by my aunt before she died?

UPDATED: Apr 10, 2011

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Should I be entitled to a gift given to me by my aunt before she died?

Approximately 2 years ago I was takingcare of my seriously ill uncle and his wife for 7 months; He was in and out of hospitals. My uncle passed on and my aunt, in front of witnesses, gifted to me was giving me his 2 watches (a gold Rolex, and an Omega). However I did not take them at the time. I told her I would wait until his Will was read and if there was no mention is made, I would take the watches then. I made the executor aware of thisand she agreed. Now, since his Will made no mention as to what should be done with his jewelry, she is telling me the law says I should pay his estate their value if I want them. My aunt passed on soon after him.

Asked on April 10, 2011 under Estate Planning, New York


SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 11 years ago | Contributor

You probably do not have a right to them.

It's doubtful that your aunt could give you the watches at that time (right after your uncle passed); until the will was probated and the assets distributed, his belongings--like his watches--are not hers to distribute. Once someone passes, their belongings MUST go through the person's estate; someone, even a spouse, cannot give away assets of a decedent. There are exceptions for items which pass, without probate or by intestate succession, directly to the spouse, like a joint bank account; since it automatically becomes hers when the other account holder passes, she may make distributions from it. However, personal property which was his does not automatically go to the spouse, so once he passed, it would need to be distributed according to his will or intestate succession.

If you aunt had lived, once she received the  watches from her husband's estate (if she did), she could have gift them to you, but that, unfortunately, if not what happened.

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