the Second District Court of Appeal reviewed the
inter vivos transfer of over $1.
include, but are not limited to: the age and general condition of health of the donor at the time of making the gift; the time interval between the
inter vivos transfer and death; the existence of a desire to evade inheritance taxes; whether or not the
inter vivos transfer was part of a testamentary scheme or plan; past history of substantial gills by the donor; whether or not the gift was made to the natural objects of the donor's bounty; whether or not there existed an emergency situation which may have prompted the donation (e.
Subsection 73(4):
Inter vivos transfer of family farm corporations and partnership.
The question about making an
inter vivos transfer could be considered as an additional proxy for wealth or that altruism or exchange motives exist.
A donor cannot allocate GST exemption to an
inter vivos transfer (a transfer the donor makes during his lifetime) if the property would be included in his or her spouse's gross estate (other than under IRC section 2035) if the donor died immediately after the transfer.
The Tax Court explained that this ignored the premise of the QTIP regime, under which the surviving spouse is treated as receiving the entire QTIP from his or her spouse and then transferring it either at death or in an
inter vivos transfer.
When the result of undue influence is an
inter vivos transfer or gift, however, the courts have failed to clearly describe the various factors that tend to prove (or refute) an undue influence case.
The Ninth Circuit, affirming the Tax Court, has ruled that the full fair market value of residential property must be included in the decedent's gross estate, finding that the decedent retained income and economic enjoyment from the property and that the
inter vivos transfer of the property was not a bona fide sale for adequate and full consideration under Sec.
Attorneys often allege undue influence to challenge the validity of a decedent's will, trust, or
inter vivos transfer.
A second concern is whether an argument can be made that this fact pattern is really a conditional
inter vivos transfer, the value of which will only be known in the future.
2036(a)(1) returns an
inter vivos transfer to a decedent's gross estate if there is an express or implied agreement at the time of transfer that the transferor will retain lifetime possession or enjoyment of, or right to income from, the transferred property; see Regs.
2523(f) provides a similar provision for an
inter vivos transfer of property.
