Giving Gifts in Life
Sometimes people like to give property as gifts to others not just in their will but even before they die. This could be to minimize tax, for convenience, or various other reasons. They may do this even where they have already stated the desire in their will to give the same property to the same people or sometimes to other people.
This is allowed but must be done correctly. What may sound like a simple act actually has many legal conditions attached that must be satisfied. If it is done incorrectly, a court may find the gift never happened, even if one or both parties thought it did.
To give a gift in life (legally called an “inter vivos” gift), the person giving the gift (the “donor”) must:
- Be alive,
- Have the capacity to legally give things to others, which includes:
- Being legally allowed to own and deal with their own property,
- Having the mental ability to understand what they are doing, what property they are dealing with, and the consequences of it,
- Not being forced by someone to give the gift (under “duress”),
- Legally own the property they want to give,
- Be legally allowed to gift the property,
- Intend to give that property (“transfer legal title”) to that person (the “donee”),
- Intend to transfer legal title to that property unconditionally and for nothing in return,
- Transfer legal title and possession of the property to the donee or create a document that serves as legal evidence of the donor’s intent to gift the property, including any legal formalities necessary if a law requires them, and
- Ensure the donee accepts the gift.
It is important to remember, if property is properly given, with all the legal requirements satisfied, it is final and cannot be undone without authorization by a law or court.
