My uncle died leaving his estate to be divided equally between five nephews. Five years ago, he gave me (one of the nephews) a monetary gift. By all indications, this was a gift--there was never any talk or anything written down to it being otherwise. The executor (another one of the nephews) found a receipt for this gift in my uncle's files. The receipt has the amount and is marked "gift." He now wants to take the amount of the gift out of my share of the estate.
The will says the estate should be divided five ways equally and there was never anything written down saying this gift should be taken out of my share of the estate. Can the executor legally take out this gift from my share of the estate in Colorado? I know that in Alaska Probate Law, he cannot.
Since you don't make this clear, I will assume the decedent passed away in Colorado and the will is under Colorado law.
If so, the personal representative (the term executor is not used in Colorado probate) does not have a viable demand unless the will stated otherwise. A person can give whatever they want to anyone before death and that does not, automatically, reduce the portion of the estate to that benefiary.
This answer is for informational purposes only and is not legal advice regarding your question and does not establish an attorney-client relationship.
The issue is whether the amount was a gift or an advancement against a future share of the estate. Unless it is clearly indicated in the Will (or possibly some other document although any competent attorney drafting a Will would state in the Will that there were advances or loans made) it would be presumed to be a gift. With the receipt found, that should substantiate the nature of the payment. Loans are an easy way to handle these matters if they are intended to be repaid to the estate or deducted from one's share. Obviously, that was not the case. The PR has a duty to carry out the terms of the Will.
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