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16 Cards in this Set
- Front
- Back
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A transfer must meet three main requirements to qualify as an outright inter vivos gift. |
1. Present donative intent. 2. Delivery. 3. Acceptance |
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Gift by Duress |
Not voluntary, thus transfer is not an outright gift. |
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Promise to make a gift |
A transfer must be immediately effective to qualify as an outright inter vivos gift. A gift is not complete until the property has left the donor's sphere of authority such that the donor cannot stop the transfer. |
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Returning an inter vivos gift? |
Outright inter vivos gifts are permanent, unconditional, and irrevocable. Once Donoe completes the gift, the gift cannot be legally undone. |
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Engagement gifts |
Some courts permit the door of an engagement gift, typically a ring, to retrieve the gift if the marriage does not occur. |
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Deeds in a safety deposit box? |
Most courts - no gift. Some courts - maybe. |
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Constructive Delivery |
Occurs when the donor transfers to the donee the means of obtaining possession or control of the property rather than the actual property. [Most common = delivery of a key.] |
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Symbolic Delivery |
Occurs when the donor gives the donee somethign that represents the property instead of the property itself. The most common sumbolic delivery method is the deed of gift, a written instrument that evidences the donative intent, names the donee, and describes the property. [i.e. Donor writes: I, Donor, hereby make an irrevocable outright gift of my watch to Donee.] |
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Acceptance |
Acceptance is normally presumed because outright inter vivos gifts usually bestow benefits on the donee. |
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Benefits of Inter Vivos Transfer |
Donee's immediate enjoyment, donor satisfaction, donor relieved of responsibility, tax reduction, creditor protection, reduce elective share of surviving spouse. |
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Disadvantages of Inter Vivos Transfer |
Irrevocability, lack of control, leverage reduction, jealousy, minors and incompetents lack legal capacity, transfer taxation. |
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Gifts Causa Mortis |
Gift made in contemplation of death. Either automatically revoked (majority view) or revocable at the donor's discretion (minority view). |
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Inter vivos/living trust |
Instead of giving donee outright control of gifted property, the donor may impose restrictions, limitations, and conditions on the gift by transferring it to an inter vivos or living trust. |
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Transfers of Future Interests |
The donor may retain a life estate in property and transfer only a future interest. Most common type - remainder (vested/contingent). |
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Powers of Appointment |
The right to designate the new owner of property. Owner = donor. Person with the power to appoint = donee. Prospective new owners = objects of the power. Actual new owners (selected by donee) = appointees. If the donee fails to exercise the power, the property passes to the default takers. If the donor failed to name default takers, the property reverts to the donor or the donor's estate. Powers can be general (no restrictions/conditions on donee's power) or specific/special/limited (door may specify certain individuals/groups other than donee who can receive). Donee has no duty to exercise POA in favor of hopeful appointees. Donee is not a fiduciary. Donee is not an agent. POA may be inter vivos or testamentary.Typically used with trusts. |
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Transfers to Minors |
Minors lack the legal capacity to manage property. You can transfer directly to the minor. If the property requires management, a direct transfer will require the court to appoint a guardian or conservator of the minor's estate. Donor could place property in trust for the benefit of the minor. Donor may transfer the property to a custodian of the minor. All states have adopted either Uniform Gifts to Minors Act or the successor Uniform Transfers to Minors Act. Under these, door may make a gift to minor donee and retain management as custodian or name another to serve in that role. |
