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My question is in regards to Estate Probate state of Massachusetts, whom is entitled to the gift(s)?

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Prior to my Dad's passing, I had given him a variety of gifts (e.g., portable generator, cordless drill, tool boxes) and according to his will my Mom whom survives him is to inherit the house, land, belongings. However, unlike the fair equal distribution of assets to the five children as his will states; she is giving most to her favorite child. As a consequence, and I thought I had read it somewhere, am I not legally entitled to the gifts I gave to my father?

Attorney Answers 5

Posted

As they were gifts, they became your father's property upon receipt. They are part of his estate at death and are his to pass through his will as he pleases.

As for your mother giving disproportionate distributions to one child, you will have to look at the language of the will. Often, wills contain provisions allowing a personal representative great leeway in determining what distribution is fair and equitable. If your mother has effectively disinherited someone or has given severely disproportionate gifts to one or more children, she may be violating her duties as personal representative. You would need to file a petition with the court.

Consult an attorney. Have the attorney look at the will, first and foremost. It would not be unheard of for a will to say something like, "my executrix is to distribute my estate to and among any one or more of my children as she, in her sole and unfettered discretion shall deem appropriate." If that is the case, your mother would have final say on who gets what and who, if anyone, gets nothing.

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Posted

When you give someone a gift, you give up any and all claims you might have on the item. Otherwise, it is not a gift, but a loan. Once you gave your dad these things, they were his. Upon his death, they pass to your mom under the Will. She is then free to do whatever she sees fit with them. While there is some basis for argument that she should look to you, first, she is under no legal requirement to do so.

James Frederick

***Please be sure to mark if you find the answer "helpful" or a "best" answer. Thank you! I hope this helps. ***************************************** LEGAL DISCLAIMER I am licensed to practice law in the State of Michigan and have offices in Wayne and Ingham Counties. My practice is focused in the areas of estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. If I refer to your state's laws, you should not rely on what I say; I just did a quick Internet search and found something that looked relevant that I hoped you would find helpful. You should verify and confirm any information provided with an attorney licensed in your state. I hope you our answer helpful!

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Posted

I am sorry for your loss.
The gifts that you gave to your father were his property. As you pointed out, that property then passed to your mother. She can distribute this property to whom ever she chooses. My suggestion to you would be to ask for what you want. Without doing so, your mother will not know that she is hurting your feelings by not passing items on to you.

*** LEGAL DISCLAIMER I am licensed to practice law in the Commonwealth of Massachusetts and have an office in Reading. My practice is focused in the areas of elder law, estate planning and probate administration. I am ethically required to state that the above answer does not create an attorney/client relationship. These responses should be considered general legal education and are intended to provide general information about the question asked. Frequently, the question does not include important facts that, if known, could significantly change the answer. Information provided on this site should not be used as a substitute for competent legal advice from a licensed attorney that practices in your state. The law changes frequently and varies from state to state. IRS Circular 230 Disclosure: In order to comply with requirements imposed by the Internal Revenue Service, we inform you that any U.S. tax advice contained in this communication (including any attachments) is not intended to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing, or recommending to another party any transaction or matter addressed herein.

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1 comment

James P. Frederick

James P. Frederick

Posted

Very good advice. As attorneys we often get focused on the legalities of the question and we need to remind ourselves that the people involved are family.

Posted

Hi

Your gifts to your father became your father's property while he was alive and you have no right to get them back. Under the new probate code, your mother inherits everything from your father so the property is hers to give as she chooses.

Steve Coren

This answer does not consitute legal advice and does not create an attorney-client relationship. The answer is based only on the facts presented. This answer is basd only on Massachusetts law.

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Posted

I agree with my colleagues. Once you give a gift, you are not entitled to get it back.

Please note that I am answering this question as a service through Avvo but not as your attorney and no attorney-client relationship is established by this posting. An attorney-client relationship can only be established through signing a Fee Agreement and paying the necessary advanced fees.

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