Judge Rudy: Wills

Judge Rudy: Wills

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By Rudy Serra, attorney, former district judge

Q: About ten years ago my sister-in-law left an expensive set of tools in my garage. She lives not far from me and I repeatedly asked her to come and get the tools, but she never did. I want to sell them. Suddenly, she died and did not leave a will. My brother now claims she said she wanted the tools to be a gift to my nephew. I don’t think that’s fair but I don’t know what to do.

A: My last column was about writing a will without a lawyer. Your question presents property issues that can arise when a person dies without a will, and related questions. Under the law, a gift requires two things. First, present delivery and, secondly, “donative intent” or the intention to make a gift. If your sister-in-law had intended the tools to be a gift, she failed to deliver them to the recipient so there was no gift. Once the person dies, their donative intent could be ex-pressed in a will. Assuming the property is part of your sister-in–law’s estate, her surviving spouse, if she was married at the time of death, inherits everything. If there is no spouse, then the surviving children would inherit in equal shares. This distribution assumes that the property is part of the estate. The spouse or children would have to open an estate and have a “personal representative” appointed by the probate court. That personal representative would then demand that you account to the estate for the property.

As a practical matter, the estate may not have a viable claim for the property. Depending upon the time that passed and the reasonable expectations of the parties, the property could be considered to have been abandoned. If you had proof that you notified your sister-in-law that she should pick up the item or you would dispose of it, your claim would be stronger. If the facts you describe are accurate, then the property has been in your garage ten years. Most people would consider that more than long-enough to store someone else’s property involuntarily. It would be up to you to prove that you asked for the property to be removed. Your sworn testimony may be considered evidence on that issue.

Aside from the question of whether a person should have a will, this is a good example of being able to avoid problems and uncertainty if you put it in writing. For example, if you had sent a letter or two to your sister-in-law during that ten-year period, and if you had copies with a deadline, it would definitely help. Since it is too late to prevent this particular issue, you should probably work out a mutually agreeable resolution with your brother. If no estate was opened, he would have to take you to small claims court to recover the property.

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