‘Tis the season of giving, but just what is a gift?
There is actually a body of law that addresses this question. Legally speaking, a gift is a voluntary transfer of property to another made gratuitously and without consideration. Or to translate from legalese to American English, it a transfer of property from one person to another, for free, without anything paid or promised in return.
From time to time a dispute exists over whether or not a gift has been made, so how do you prove it?
In Court, you must prove three things: 1. That the person making the gift (donor) intended to make a gift, 2. The property the subject of the gift has been delivered to the person receiving the gift (donee), and 3. The acceptance of the gift by the person receiving the gift.
Seems pretty simple, but is it? I transfer possession of my shovel to you. If I expect it back, it’s a loan, if I expect you to keep it, conditionally it’s a gift.
If I transfer possession of my dog to you while I’m out of town, are you just taking care of the dog while I’m gone or is it a gift? It all depends on my intent.
Your present is under my Christmas tree wrapped and waiting for you but you haven’t picked it up. Gift hasn’t been delivered yet, so no completed gift.
The last element of a gift is acceptance. You can’t make someone take a gift.
Gifts of real estate present a more complicated situation. The best way is to execute a deed and give the deed to the person who will own the land. Without delivery of the deed the gift is not complete.
Have a happy holiday season.
Attorney Rob Morris is an attorney at Hammerle Finley Law Firm, a boutique law firm offering services in estate planning, probate, guardianship, business law, litigation, and real estate. Contact him at 972-436-9300. This article does not constitute as legal advice.
(Sponsored content)
.jpg)
