By Associate Attorney Danielle Nodar
By creating a will or trust, a testator or settlor may make gifts to beneficiaries that are distributed at death. Often, the gift-giver will attach strings to these gifts in the form of certain conditions that the beneficiary must meet in order to receive the gift. Many conditions have been upheld by courts, but if a condition is considered too restrictive over certain aspects of a beneficiary’s life, the condition has been invalidated.
There are two types of conditions: conditions precedent and conditions subsequent. Conditions precedent are conditions that must be met before the gift can be distributed to the beneficiary. Some examples of conditions precedent that have been upheld include gifts that are conditioned on a beneficiary finishing college or reaching a certain age before receiving the gift. Conditions subsequent, which are conditions that must be met after the gift is distributed, are often more difficult to uphold if the assets have already been transferred to the beneficiary and too much time has passed. For example, if a beneficiary receives a gift of land with the condition that it is never used for commercial purposes, it may be difficult to enforce fifty years after the gift is received; thus, this condition is more likely to be invalidated.
Courts try to honor a testator’s or settlor’s wishes as much as possible, but a condition that encourages a beneficiary to break the law or is against public policy will be invalidated, and the gift will pass to that person as if the condition did not exist. Traditionally, gifts that have been invalidated due to public policy grounds are gifts that encourage harmful or discriminatory acts or hurt society in general.
One common condition that is often challenged are conditions related to marriage, particularly conditions that a beneficiary receive a gift only if he or she marries someone of a certain faith. Depending on how the condition is written, these requirements have been upheld by courts, but the court decisions are very specific to the facts of each case and the phrasing of each gift. If a condition is too restrictive on the beneficiary’s right to marry anyone or if it encourages the divorce of a beneficiary, it is likely to be a violation of public policy.
Whenever a condition is placed on a gift made in a will or trust, the condition must be clearly written, because if a beneficiary does not inherit due to failing to meet the condition, they may file a lawsuit to challenge the validity of a gift. A lawsuit will cause an unnecessary delay in other assets being distributed to beneficiaries, and the expense of a lawsuit will be paid out of your estate or trust. Also, when considering how to make a gift, certain conditions are easier to administer in a trust versus a will, as gifts in a will are usually distributed shortly after the decedent’s death and are subject to court scrutiny. When considering where and how to leave your assets, particularly if you want to exert some control over how the beneficiary receives the gift, it is important to consult with an experienced estate planning attorney. Please call Jesson & Rains if you are interested in more information on making gifts in your will or trust.
While You Build, We Protect®
By Associate Attorney Danielle Nodar
You may know that Jesson & Rains, PLLC offers a variety of legal services including estate planning, probate administration, business law and litigation, and construction contracts and litigation. But you may not know that they are also licensed in other states as well.
Kelly Jesson, Edward Jesson, and Danielle Nodar are licensed to practice law in both North Carolina and Florida. Katheryn Currie is licensed to practice law in both North Carolina and Alabama. Hopefully, Ed and Katheryn will be licensed in South Carolina by the end of the year!
By maintaining our licensure and good standing in multiple states, we are able to provide legal services to our clients that may reside in North Carolina but have businesses or real estate located in another state. For example, if you own real estate in Florida and need to retitle it, our attorneys can draft and record your Florida real estate deed. As our practice has become more virtual over the last few years, we are also able to assist our clients who reside out-of-state with drafting documents that must be from the client’s resident state, such as wills and powers of attorneys.
If you have questions about how we can assist you with your legal needs in or outside of North Carolina, Florida, or Alabama, please let us know!
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