If an item is listed in a Will to be given to a certain beneficiary butit was previously gifted to someone else, who gets the item?

My stepfather gave his coin collection to my son as a birthday gift 2 years ago. My stepfather recently passed away and his Will states his coin collection goes to his nephew. Does my son have to surrender the coins to him? The Will is 27 years old.

Asked on December 12, 2011 under Estate Planning, New Jersey

Answers:

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

No, your son does not need to return the coins. A will is only operative as to the property actually owned by the decedent (the person who passed away) as of his/her death. Anything which the person had lost, given away, sold, exchanged, had stolen, etc. is not transferred by the will; previous lawful transferees, like your son, do not need to return the item(s). This is not an uncommon situation--since wills are created in advance of death, it's often the case that when the testator (person making the will) passes, he or she did not own the things he or she thought he or she would.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 8 years ago | Contributor

No, your son does not need to return the coins. A will is only operative as to the property actually owned by the decedent (the person who passed away) as of his/her death. Anything which the person had lost, given away, sold, exchanged, had stolen, etc. is not transferred by the will; previous lawful transferees, like your son, do not need to return the item(s). This is not an uncommon situation--since wills are created in advance of death, it's often the case that when the testator (person making the will) passes, he or she did not own the things he or she thought he or she would.


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