Monday, December 8, 2008

It's Just Another Lump

Dear Aunt Babz,

Hi i am a guy that lost my mom when i was 19 and my dad is suing the people that killed her and the money is being split 30% to my dad and 20% to each kid and 10 % to my grandma and my grandma wants it to be split 20% 5 ways and i do not know who's side to take plz help me

Thanks Aunt B,

Needs Help

Dear Needs Help,

Well, let me first say that I am sorry for your loss. I don't care how old a man is, when he loses his Mama it's never easy. I do hope you allow yourself to grieve openly concerning that loss and to hell with anyone who does not understand. OK?

What I am saying is give yourself permission to feel that loss and not stuff it as many men do. Quite often men feel that showing emotion such as grieving, openly crying and so forth is not "Manly." But if the truth were known, I firmly believe that a man who can not allow himself to feel lives a life of repression and pain.

When a man does not feel, grieve or allow himself to cry, it becomes a pent up sensation that tends to come out sideways, typically in the form of anger. Look out whoever gets in the way of it.

Oddly enough and more so evident are the misguided, misdirected and hostile situations which occur when someone close to us dies. I have never, in my life, seen such squabbling between siblings and parents alike as I do when an immediate family member dies. Unfortunately, it's usually over money matters.

Yes, when there's money involved in death, it brings out the ugly in people.

"God don't like ugly and he's not real fond of stupid."

I don't know all the components of your situation or your family make up. Far be it from me to even think I am any "Miss Manner's," either. But it is commonly known and from my research, that it should and will always fall upon the spouse to decide how his wife's assets are dispersed. He has the final say. Final.

As well, he is not required by law to disperse any of those assets with the exclusion of minor children, to any adult children unless there is a will stating that fact and how her assets are to be distributed. Their home as well as her current assets are considered "Life Interest," and will usually remain in his name, care and responsibility until his death.

Unless your Mother specifically stated that her wish, upon her death would be that her own Mother might inherit any portion of her assets under law she is not entitled to anything...but neither are you. However, in case law it is more common that children, even adult children might benefit from what is commonly known as a "Gift," and not a legal and binding bequeathed situation, where no will exists.

I could not find any case law which states, even on a moral realm, where that gifting situation goes up the hierarchical
tree. Of course, what people, families do behind closed doors without an executor or administrator is not recorded as case law is. But in any court of law in this United States, your Father would naturally inherit, under normal conditions, all assets as well as expenses such as medical care not covered under insurance and funeral expenses.

Thus the answer to your question would most likely be that if your Father decided to give any of you any proceeds from this wrongful death settlement, he is not bound under law or mandated to give any of you anything. What he might give you, as I stated before would be considered a gift.

Morally, it would be nice as well as gracious for him to honor the love your Mother had for you by honoring you with this gift. I must say though that unless your Grandmother was a primary caregiver for you as well as your siblings, she really has no say in the matter.

If we were to look at statistics concerning how monetary execution is made concerning the normal situation where a will is administered, you would rarely see a bequeathment going up the hierarchical chain. It most certainly goes down that chain and would be applied to the minor children first and foremost, normally in the form of a trust. In this situation, I'm assuming there are no minor children? If this is true, again, anything you receive will be a *gift.

Finally, if Grandma were sitting right in front of me, I would offer her coffee or tea and ask her to sit and talk with me. I would then explain to her that under these or any other circumstance, she has no say in this matter and for this I am sorry. I would also tell her that it does not seem that anyone wants to hurt her feelings on this issue. It's quite obvious that she is loved, honored and deeply cared for. But anything, any percentage she might get, she should be grateful for and thank her lucky stars. She is legally and morally owed nothing.

Life has it's lumps and I assume by now, at her age she's realized this. Without making light of the situation and with all due respect...It's just another lump.

Keeping It Real,

Aunt Babz

Dear Needs Help,

I would just like to add to Babs comment (which was really really well done might I add) that "picking sides" is the last thing you should be doing. If it is not your decission, then let it be. As a person who has just lost someone and has had to deal with this first hand, I can tell you that choosing sides will do nothing but cause hurt feelings and ruin relationships. Don't do that to yourself. Let the powers that be decide what is to happen and stay out of the feud. In the end, the law will work it out, and you will have to deal with one of the parties being upset (your father or grandmother). You don't need to add insult to injury by being the one who said "i told you so: in either case. Your family has lost enough all ready, try and take care of those you have left.

Good Luck, ~Xmichra

*GIFT - A voluntary transfer of property from one person or entity to another made without charge or consideration.
A voluntary transfer of property or of a property interest from one individual to another, made gratuitously to the recipient. The individual who makes the gift is known as the donor, and the individual to whom the gift is made is called the donee.

*If a gratuitous transfer of property is to be effective at some future date, it constitutes a mere promise to make a gift that is unenforceable due to lack of consideration. A present gift of a future interest is, however, valid.

Rules of Gift-Giving

Three elements are essential in determining whether or not a gift has been made: delivery, donative intent, and acceptance by the donee. Even when such elements are present, however, courts will set aside an otherwise valid gift if the circumstances suggest that the donor was, in actuality, defrauded by the donee, coerced to make the gift, or strongly influenced in an unfair manner. In general, however, the law favors enforcing gifts since every individual has the right to dispose of Personal Property as he or she chooses.

Delivery Delivery of a gift is complete when it is made directly to the donee, or to a third party on the donee's behalf. In the event that the third person is the donor's agent, bailee, or trustee, delivery is complete only when such person actually hands the property over to the donee.

A delivery may be actual, implied, or symbolic, provided some affirmative act takes place. If, for example, a man wishes to give his grandson a horse, an actual delivery might take place when the donor hires someone to bring the horse to the grandson's farm. Similarly, the symbolic delivery of a car as a gift can take place when the donor hands the keys over to the donee.

Delivery can only occur when the donor surrenders control of the property. For example, an individual who expresses the desire to make a gift of a car to another but continues to drive the car whenever he or she wishes has not surrendered control of the car.

A majority of states are practical about the requirement of a delivery. Where the donor and the donee reside in the same house, it ordinarily is not required that the gift be removed from the house to establish a delivery. If the donee has possession of the property at the time that the donor also gives the person ownership, there is no need to pass the property back and forth in order to make a legal delivery. Proof that the donor relinquished all claim to the gift and recognized the donee's right to exercise control over it is generally adequate to indicate that a gift was made.

In instances where delivery cannot be made to the donee, as when the person is out of the country at the time, delivery can be made to someone else who agrees to accept the property for the donee. If the individual accepting delivery is employed by the donor, however, the court will make the assumption that the donor has not rendered control of the property and that delivery has not actually been made. The individual accepting delivery must be holding the property for the donee and not for the donor.

In situations where the donee does not have legal capacity to accept delivery, such delivery can be made to an individual who will hold it for him or her. This might, for example, occur in the case of an infant.

Donative Intent Donative intent to make a gift is essentially determined by the donor's words, but the courts also consider the surrounding circumstances, the relationship of the parties, the size of the gift in relation to the amount of the donor's property as a whole, and the behavior of the donor toward the property subsequent to the purported gift.

The donor must have the legal capacity to make a gift. For example, Infants or individuals judged to be unable to attend to their own affairs have a legal disability to make a gift.

In addition, an intent to make a gift must actually exist. For example, a landlord who rents a house to a tenant does not have the intent to give such premises to the tenant, even though the tenant takes possession for an extended period of time. Similarly, a gift to the wrong person will not take effect. If an individual mistakenly gives gold jewelry to an imposter who is believed to be a niece, the gift is invalid because there was no intention to benefit anyone but the niece.

The intent must be present at the time the gift is made. For example, if one person promises to give a house to an artist "someday," the promise is unenforceable because there is no intent to make an effective gift at the time the promise is made. The mere expectation that something will someday be given is not legally adequate to create a gift.

Acceptance The final requirement for a valid gift is acceptance, which means that the donee unconditionally agrees to take the gift. It is necessary for the donee to agree at the same time the delivery is made. The gift can, however, be revoked at any time prior to acceptance.

A court ordinarily makes the assumption that a gift has been accepted if the gift is beneficial, or unless some event has occurred to indicate that it is not.

Types of Gifts

The two principal categories of gifts are inter vivos gifts and causa mortis gifts.

Inter vivos gifts Inter vivos is Latin for "between the living" or "from one living person to another." A gift inter vivos is one that is perfected and takes effect during the lifetime of the donor and donee and that is irrevocable when made. It is a voluntary transfer of property, at no cost to the donee, during the normal course of the donor's life.

A gift inter vivos differs from a sale, a loan, or barter since something is given in exchange for the benefit in each of such transfers. Whether the value given is a money price, a percentage interest or an equivalent item of property, or a promise to repay, the element of exchange makes such transfers something other than a gift.

There are a number of special types of inter vivos gifts. Forgiveness of a debt is a gift of the amount of money owed, and delivery can be accomplished by destroying the promissory note signed by the debtor and handing it over to him or her. A share of stock in a corporation may ordinarily be given to someone else by having ownership transferred to the person on the books of the corporation or by having a new stock certificate issued in the person's name. A life insurance policy can generally be given to someone by delivering the policy, but it is more expedient to express in writing that all interest in the policy is assigned, or transferred, to the donee and to notify the insurance company to that effect. Certain states require these formalities since insurance is strictly regulated by state law. Gifts of land can only be made by written transfer.

A donor can limit an inter vivos gift in certain ways. For example, he or she might give someone a life estate in his or her property. When the donee dies, the property reverts to the donor. A donor cannot place other restrictions on a gift if the restrictions would operate to make the gift invalid. If, for example, the donor reserves the power to revoke a gift, there is no gift at all.

Causa Mortis Gifts A gift causa mortis (Latin for "in contemplation of approaching death") is one that is made in anticipation of imminent death. This type of gift takes effect upon the death of the donor from the expected disease or illness. In the event that the donor recovers from the peril, the gift is automatically revoked. Gifts causa mortis only apply to personal property.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The Overt Act aids a court in its determination as to whether a delivery has been made.

The difference between a gift causa mortis and a testamentary gift made by will is that a will transfers ownership subsequent to the death of the donor, but a gift causa mortis takes effect immediately. In most states, the donee becomes legal owner of the gift as soon as it is given, subject only to the condition that the gift must be returned if the donor does not actually die.

The requirements of a causa mortis gift are essentially the same as a gift inter vivos. In addition, such a gift must be made with a view toward the donor's death, the donor must die of the ailment, and there must be a delivery of the gift.

Gifts causa mortis are usually made in a very informal manner and are frequently made because dying people want to be certain that their dearest possessions go to someone they choose.

A donor who is approaching death might make a gift by putting his or her intention in writing. This procedure is likely to be followed, when, for example, the donee is in another state, and personal delivery is thereby impractical. The courts only permit the donee to keep the gift if the donor clearly intended the gift to take effect at the time it was made. If the gift is made in writing in a will and is intended to become effective only after the donor dies, the gift is a testamentary one. The law in each jurisdiction is very strict about the features that make a will valid. One requirement, for example, is that the will must be signed by witnesses. If the donor writes down that he or she is making a gift, but the writing is neither an immediate gift nor a witnessed will, the donee cannot keep the gift.

The delivery requirement is frequently relaxed when a causa mortis gift is involved, since a donor is less likely to be able to make an actual delivery as his or her death approaches. A symbolic delivery is frequently sufficient to show that a gift was made, provided at least some effort to make a delivery is exercised. The overt act aids a court in its determination as to whether a delivery has been made.

A gift causa mortis is only effective if the donor actually dies. It is not necessary that the donor die immediately, but the person must die of a condition or danger that existed when the gift was made and without an intervening recovery. The donee becomes legal owner of the property in most states from the time the gift is made. The person must, however, later return the gift if the donor does not actually die. If the donor changes his or her mind and revokes the gift, or recovers from the particular illness or physical injury, the gift is invalid. A donor also has the right to require that debts or funeral expenses be paid out of the value of the gift.

"Even the most brilliant minds, may have troubled Souls"

No comments: