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When reading about gift-giving in the context of estate law, you’ve probably come across the term inter vivos several times. An inter vivos gift is property that was transferred while the gift-giver was living. The opposite of an inter vivos gift is known as a testamentary transfer – a gift given after the gift-giver has passed away. A testamentary transfer would typically be something named in a will. While people traditionally think only of testamentary gifts when they’re estate planning, both types of gifts play an important role in an effective estate plan.
Before choosing to give an inter vivos gift, it’s important to understand when a gift is legally binding and when it’s not. Gift-givers should be careful that they’re giving valid gifts, especially when gifting large assets such as land. In order for an inter vivos gift to be legally binding, there are two requirements:
While these criteria sound quite straightforward, it raises complications for gifts of real estate where the gift isn’t necessarily “delivered”. When a gift is given but never perfected, the gift is said to be imperfect and will not take effect. Sometimes, testators have a clear intent to make an inter vivos gift but just don’t get around to finalizing the transaction before their death. In this case, the gift will not take effect and the asset will fall into the estate. For more information, read our blog post on imperfect gifts.
Inter vivos gifts are an extremely powerful estate planning tool in BC. When an inter vivos gift is given, the asset won’t be considered part of the gift giver’s estate. This saves on probate fees and the donee will receive the asset much sooner than if it went through the estate administration process. Further, there can be great sentimental value in gifting before one’s death as they’re able to watch their loved ones enjoy the gift. For more information, read our blog on the advantages of gifting before death.
Inter vivos gifts can be basically anything you choose – you can gift cash, financial accounts, real estate, or even joint tenancy in a property. The gift of joint tenancy is a particularly useful tool because of real estate’s high value. Joint tenancy can only be done inter vivos and is never a testamentary gift. People often only think of joint tenancy in the case of spouses who are living together in a house, however, joint tenancy can be used to create a type of succession agreement with the testator’s beneficiaries.
A common problem that arises when people transfer in joint tenancy is that their intentions for the property are not made clear enough. There is a presumption that a transfer in joint tenancy is not made with the intent to gift, rather with the intent to be held in trust – the presumption of resulting trust. In other cases, it can be unclear whether the testator intended for the joint owner to be gifted the property upon their death. For joint tenancy gifts and all gifts in general, it’s important to be extremely clear about what your intentions for the asset are. In many cases, it’s a good idea to document your intentions in case there is a dispute over your estate after your death.
When preparing an estate plan, you should always consider the possibility of naming inter vivos gifts to your loved ones. If you’re unsure how you might give gifts before your death, contact an experienced estate lawyer today. We will work with you, ensuring the perfect estate plan for your situation, maximizing your estate’s value and your loved one’s prosperity.