Gift, Loan or Advancement

One common issue I have seen arise in estate administration matters is whether a pre-death payment by a parent to a child was a gift, a loan or an advancement. 

In the case of a gift, the child would clearly not have to pay back the parent for the gift or have their potential inheritance reduced.

In the case of a loan, the child would need to repay the principal to their parent plus some amount of interest. A loan might or might not affect a child's inheritance.

In the case of an advancement, the parent's trust or will should specify that this pre-death payment is a credit against the child's future inheritance.  

Invariably, the recipient of the pre-death payment will argue that it was a gift.

Conversely, the non-recipients of the pre-death payment, i.e. almost always the other children, will argue that it was a loan, or at worse an advancement.

A recent unpublished appellate decision focused on this issue, i.e. was a pre-death payment from a parent to a child a gift or a loan.

"Patricia passed away in February 2016, leaving a will. Eight years before her death, Patricia transferred $600,000 to Dana. Plaintiffs sought a ruling that Patricia lent the money to Dana and that she was required to pay it back to the estate. Dana asserted the money was a gift."

"The court filed its SOD on June 6, 2019. It included a description of the transaction and the evidence on which it relied about the nature of the transaction and Patricia's intent. The court confirmed its oral pronouncement at the May 10 hearing that Patricia gifted the $600,000 when she transferred it to Dana in 2008. The court in its SOD considered each of the six factors necessary for a gift and found each was proven by clear and convincing evidence. In so doing, the court noted there was conflicting evidence on the issue of whether the $600,000 transfer was a gift or a loan. The court nonetheless found Patricia's intent in 2008 at the time of transfer was to make a gift to Dana. The court denied the petition and awarded costs to Dana."

The trial court's ruling was upheld by the appellate court. It found, based upon the evidence, that the parent intended to make a gift of $600,000 to her daughter in 2008.

Estate of Walsh, San Diego County Superior Court case # 37-2017-00016491-PR-PW-CT.

Advancement or Gift

Parents commonly gift money to their children. This can take the form of an allowance when they are young, a graduation gift when a teenager or a wedding gift when an adult.

A question that arises occasionally in this context is whether the gift is really a gift or is the "gift" an advancement of the child's inheritance. A recent published appellate decision touched upon this issue.

Sachs v. Sachs (2020) ___ Cal.App.5th ___

"David L. Sachs had two children, Benita and Avram. David established a trust in 1980 when Benita was 20 years old and Avram was 12. The trust provided for small distributions to other beneficiaries, but most of the trust corpus would be distributed to Benita and Avram equally on David's death. David was the original trustee. 

In 1989 David began to keep track of money distributed to his children on papers he referred to as the "Permanent Record." When a child asked for money, David would tell the child that the distribution would be reflected on the Permanent Record. 

In June 2013 David began to experience cognitive problems due to a stroke. He hired Ronda Landrum as his bookkeeper to help manage his finances. At David's instruction Landrum continued to make distributions to Avram and Benita. Landrum said David was adamant that she keep a record of the distributions. After a distribution was made David would often confirm that the distribution was on the list. Landrum kept a list for each child in the form of an electronic spreadsheet. David told Landrum on more than one occasion that keeping the list was important so that payments made to his children could be deducted from their respective inheritances. 

In October 2013 David resigned as trustee and Benita became the successor trustee. Following her appointment, she found the Permanent Record among her father's papers. The record consists of a separate file for each child. The entries were made entirely in David's handwriting. The papers list the dates and the amounts distributed beginning when each child attained age 30. The entries were not all made with the same pen, and the papers were of different types and ages."

The appellate court held that

"Probate Code section 21135 provides that transfers of property to a person during the transferor's lifetime will be treated as an at death transfer to the person under certain conditions. All of these conditions require a writing. Here we decide that the transferor's record of amounts he periodically distributed to his children is a writing that satisfies the requirements of section 21135."

Ademption by Satisfaction

When a beneficiary under a will receives their inheritance prior to the testator's death, the question then becomes whether or not the devise is satisfied. This is known as ademption by satisfaction. 

For reference, ademption is defined as property that was listed in the person's will that is not in his or her estate at the time of their death. Black's Law Dictionary 8th ed. (West Group, 2004). Of note, when I was in law school, the term used for ademption by satisfaction was "advancement." Other jurisdictions may use the latter term instead of the former.   

California Probate Code § 21135 states that if one of the following conditions occurs, then ademption by satisfaction is triggered:
(a) Property given by a transferor during his or her lifetime to a person is treated as a satisfaction of an at-death transfer to that person in whole or in part only if one of the following conditions is satisfied:
(1) The instrument provides for deduction of the lifetime gift from the at-death transfer.
(2) The transferor declares in a contemporaneous writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer.
(3) The transferee acknowledges in writing that the gift is in satisfaction of the at-death transfer or that its value is to be deducted from the value of the at-death transfer.
(4) The property given is the same property that is the subject of a specific gift to that person.

For example, Thomas Hobbs, a widower without any children, wrote a will that included a gift of $25,000 to his neighbor Bobby Winghart. The balance of his estate went to his friend, a famous author, Samuel Langhorne Clemens. Thomas named his uncle Elvis Hobbs as executor. 

Thomas was a wealthy man and had amassed a large fortune at the time of his death. He owned multiple properties having been a successful entrepreneur in Silicon Valley. Yet when Thomas died, his estate was illiquid, i.e. it lacked cash resources.  Thomas had tirelessly sought investments and believed that a bank account was a poor asset-maximization vehicle. Thus, his estate did not have sufficient funds to initially provide for Bobby's gift. 

One day, following Thomas' death, Elvis began sorting through Thomas' possessions. When going through Thomas' desk, he discovered that Thomas had given Bobby a gift of $25,000 the year before he died. The check read on the memo line "$25k is worth more today $25k tomorrow, enjoy!" Armed with this information, Elvis believed Bobby's gift had already been satisfied.

Elvis then filed a petition in probate court to determine entitlement to Thomas' estate, arguing that Bobby's gift had adeemed. Elvis argued that since Thomas' gift of $25k to Bobby matched the amount stated in the will and the check referenced the will, ademption by satisfaction should occur. The probate court agreed and ordered that Bobby take nothing from Thomas' estate as he had already received his inheritance.