Q: When someone gives away an item years before his passing; is the item subject to the deceased's previous will?
My question is about three, irreplaceable heirloom items with no monetary value, but which my father personally entrusted to me because of their immense sentimental value. When he gave them to me (several years before he passed away); my father was emphatic about his determination for me to have the heirloom items; as he was confident that I, (& my progeny) were the only ones trustworthy enough to secure the family treasures for posterity. My father had previously willed these items to other family members; yet unfortunately failed to update his will to reflect the change. Thus my question: When my father directly gifted these items to me (years before he died); did he disqualify them from being subsequently dispensed in his will? Ergo, how can the will possibly address property which (at the time of his passing) my father did not even own (because they're mine). Furthermore, my father passed away almost 10 years ago, can family members still challenge my legal possession of the items?
A: I can provide some general information about the treatment of specific devises in a Will. You will of course need to speak with an attorney to discuss the specific application of the law to your situation (as some additional facts would be helpful in providing a final answer). First, you are correct, someone cannot gift what he or she does not own. If there is a pre-death gift, then any devise in the Will is no longer valid. However, someone could legally challenge your claim of a gift and you may need to provide evidence that the gift occurred. Second, you did not indicate whether your father's Will was submitted to probate court and "probated." If so, this matter would have been addressed in that process. If not, then the general rule is that a Will must be probated within 5 years of the date of death (otherwise it is not valid). I have pasted the applicable statute below.
Time limit for probate.
Wills shall not be effective unless filed for probate within five years from the date of the death of the testator. If the testator was not an inhabitant of this state at the time of his or her death, the will may be admitted to probate in this state pursuant to section 43-8-175, provided the will was admitted to probate, within five years from the date of death, in the state, territory or country where the testator resided at the time of death; provided further, that the probate in the state of the will of an inhabitant of another state, territory or country shall not be effective against persons purchasing from the heirs of such testator if such purchase was made more than five years after the death of the testator and prior to February 24, 1959.
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