CA Estate Planning Blog

Tuesday, January 31, 2017

Once You Give A Gift, It’s Gone

Slate’s advice columnist, Mallory Ortberg, aka “Dear Prudence,” recently answered an interesting question involving heirloom etiquette that every person who is planning on gifting specific items in their estate plan should read.  

Question

"Diamond drama: A few years ago, my grandfather carried out one of my grandmother’s final wishes before her death. She had a beautiful wedding band with seven sizable diamonds and, incidentally, seven granddaughters. She wanted each granddaughter to receive one stone from the band. My granddad went to the jeweler and designed identical pendant necklaces for us, and we all wear them every day and remember our gram.

After two years of wearing it, one of my sisters gave her necklace to her soon-to-be wife. Her fiancée told us my sister no longer likes where it sits on her neck. It doesn’t sit well with the rest of us, as my grandmother wanted the stones to remain with her granddaughters and in the family, hence why they weren’t given to grandsons to gift their spouses. We are hoping my grandfather doesn’t notice because I think it would upset him. We are trying to decide if we are being overly sensitive and would appreciate a third-party opinion."

Answer


"I understand the instinct to protect your grandmother’s wishes, but a gift is a gift, and if your sister’s wife will be the one wearing the pendant, I think you should let it go. If your sister didn’t want to keep the pendant, she doesn’t have to wear it, and she chose to give it to her partner to acknowledge its meaning rather than sell it. Your sister-in-law is not disrespecting a family heirloom by having her loved one carry it instead. She is ensuring that the diamond will remain a part of your family and a part of her daily life, and you should consider it a compliment to your grandmother rather than a contravention of her wishes."

This isn’t just proper etiquette, it’s the law. Once a gift is given to someone as part of the estate administration process, it is theirs to do with as they please. This is true for gifts to organizations as well as people.

The only way to prevent gifts from being re-gifted or sold is to place a condition on the gift in your estate plan. Even then, many courts will not uphold conditions placed on gifts, and it is often not worth the expense of going to court to enforce a condition.

One way to retain some control over items is, ironically enough, to give up control of them. By putting items into a trust, carefully crafting the terms of the trust, and putting trustees you believe will carry out your wishes in control of the trust, your wishes can be enforced a bit longer and a bit more easily. However, there is never a guarantee that your wishes will be followed 100%.


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