GIFTS
A gift involves transferring title by voluntary action of the owner without receiving anything in exchange. A gift of property is a: i) passing of title; ii) made with the intent to pass title; iii) without receiving money or value in consideration for the passing of title.
Gifts can be classified as:
- Inter vivos gifts;
- Gifts causa mortis;
- Gifts and transfers to minors;
- Conditional gifts; and
- Anatomical gifts.
The donor is the person making the gift, and the donee is the person receiving the gift.
An inter vivos gift is what we think of as an ordinary gift between two persons. An inter vivos gift is made if a donor intends to convey all rights to the property at the present time and delivers the property to the donee. The gift takes effect upon the donor’s intent to transfer ownership and making delivery. The donee can refuse the gift. If there is no acceptance, the gift is not complete. Delivery ordinarily involves handing the gift over to the donee. This can be accomplished by physically delivering the gift or by symbolic delivery. An example of symbolic delivery would be delivery of keys to a car (the means of control) – symbolic of giving the car to someone. Giving a deed to a house to someone can be symbolic delivery of the real property. An inter vivos gift must be made before the death of the donor or it will fail.
A gift causa mortis is a conditional gift made by a donor who believes that he or she will soon die, and it is made with the intent that a donee will own the property if the donor dies. This gift is conditional, and the donee must give it back if the donor does not die; the donee dies first; or the donor takes back the gift before death.
The Uniform Gifts to Minors Act (UGMA) is a uniform act, which, if enacted by a state’s legislature, allows minors to own property such as securities. The Internal Revenue Service allows persons to give thousands of dollars to another person without any tax consequences. If this recipient person is a minor, the UGMA allows the minor to own the assets without setting up a trust or guardianship. Under the UGMA, the ownership of the funds works like it does with a trust except that the donor must appoint a custodian (similar to a trustee) to look after the account. UGMA allows the custodian to hold before-tax income for the benefit of the minor which will be taxed at the minor’s income tax bracket.
The Uniform Transfers to Minors Act (UTMA) is an extension of the UGMA and has been enacted by most States. The UTMA allows the donor of the gift to transfer title to a custodian who will manage and invest the property until the minor reaches a certain age. The age is generally 21, but different in some states (usually 18). In the interim, the custodian can also make payments for the benefit of the minor out of the corpus of the gift.
A conditional gift transfers rights only when certain stated conditions are met. A gift may be subject to a condition precedent or a condition subsequent. For example, “This car is yours when you graduate.” Marriage and engagement gifts are generally conditional gifts. Most States allow recovery of an engagement gift only if the person seeking to recover the gift did not unreasonably terminate the engagement.
Anatomical gifts are gifts of organs or body parts. The Uniform Anatomical Gift Act allows anatomical gifts to be made by persons who are 18 or older, or by certain members of a decedent’s family.
