When Is a Gift a Gift and Not an Advancement?

man holding a pen

I (Matthew Bollman) recently represented a client in a probate-litigation matter which involved the determination of whether the money he had received from his grandfather was to be treated as a gift or an advancement. I believe this is a frequently occurring issue and wanted to share how it should be handled.

The facts, in this case, were not in dispute. The grandfather had executed a will, and in that will, he did not mention anything regarding advancements. After the will was executed, the grandfather provided one of his grandchildren (my client) three separate payments to help him and his wife through financial hardship. At the time he provided these checks, there was no mention that the money being given was a loan or an advancement.

After the grandfather passed away, the Executors of his will decided that in order to treat everyone fairly, they should consider the payments as an advancement on the grandson’s inheritance, as opposed to mere monetary gifts. His inheritance was then offset by the total of these three checks. My client felt this was not fair and that he should receive his inheritance as outlined in the will.

The doctrine of advancements only applies in cases where the decedent dies intestate. Further, when a decedent leaves a will, the language of the will controls in determining the disposition of the estate. If there is no ambiguity or uncertainty in the language of the will, the decedent’s intent must be gathered from the will itself.

What does this mean?
If you as the testator (creator of a will) want a transfer to be treated as an advancement, it needs to be mentioned in the will. If it is not mentioned, the transfer will be considered a gift and not an advancement.

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