In All Children's Hosp., Inc., the Second District Court of Appeal reviewed the
inter vivos transfer of over $1.7 million to the decedent's caretaker, Augusta Owens.
Subsection 73(4):
Inter vivos transfer of family farm corporations and partnership.
provide an
inter vivos transfer? What are the chances that you will receive financial help totaling $5,000 or more from your children, relatives or friends?" The response to each of these questions was a value between 0 and 100 representing the likelihood of occurrence of the event.
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. Because the surviving spouse (as it had previously discussed) was liable for the tax on the transfer, the Tax Court held that the transfers were net gifts no different than the one in Estate of Sachs, and thus the gift tax on them was includible in the estate.
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.
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.g., donee's illness requiring large expenditures) (http://nj.findacase.com/research/ wfmilDocViewer.aspdxq/fac.19581020_0040100.nj.htm/qx).
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. Instruments or gifts procured through undue influence are void or can be set aside.
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.
Also, transferors receive an income tax deduction only if they make an
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.
