gifted an item in will

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gifted an item in will

A very dear friend gave my daughter a lamp to her as a wedding present in
october. He passed away a week ago and his family want it back saying that he
willed it to someone else. Does she have to give it back?

Asked on January 12, 2017 under Estate Planning, Texas

Answers:

M.D., Member, California and New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

A Will can only convey that property which the deceased owned a the time of their death. To the extent that property listed in Will was given away, sold, etc. before the maker of the Will died, then the gift, sale, etc. stands. It need not be returned to the estate.

SJZ, Member, New York Bar / FreeAdvice Contributing Attorney

Answered 4 years ago | Contributor

No, she does not. A will has NO effect on what is done before a person dies, and the bequests in the will do not in any way limit what a person does with his property while alive.  The way to read a will is the following: if the will says, "I leave my antique lamp to John Doe," what it really means is "If I still own it when I pass away, I leave my antique lamp to John Doe." But if the person who passed away no longer owns the lamp--he gifted it, he sold it, he broke it, he pawned it, someone stole it, he traded it for something else, etc.--John Doe does not get the lamp.


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