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Ely, Counselor at Law
Category: Estate Law
Satisfied Customers: 102184
Experience:  Fully licensed attorney in Texas in private practice.
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If an item is willed to someone but given to someone else

Customer Question

If an item is willed to someone but given to someone else years before the person passes away does the person it is willed to have a right to the item and can it keep the will from being executed
Submitted: 10 months ago.
Category: Estate Law
Expert:  Ely replied 10 months ago.

Hello and welcome to JustAnswer. Please note: This is general information for educational purposes only and is not legal advice. No specific course of action is proposed herein, and no attorney-client relationship or privilege is formed by speaking to an expert on this site. By continuing, you confirm that you understand and agree to these terms.

There is a concept of "gift failing" in probate. This means that if A wills ITEM to B, but then A gives it to C before A passes away, then A's gift to B fails, and C retains the item.

This works both for titled and non-titled property. For example:

Amy wills Bertha her house. However, before Amy passes away, she signs over the title to Claudia. Claudia now owns the house - Bertha does not inherit it. The gift fails since the house no longer belonged to Amy at the time of her death.

As such, the item - if no longer part of the estate of the deceased at time of death - "fails" as a gift and the heir does not receive it, as it already belongs to someone else.

However - the rest of the Will is executed as is, meaning whatever else is left is distributed to the heirs specified in the Will.

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Expert:  Ely replied 10 months ago.

Hello again. This is a courtesy check in to see if you needed anything else in regards ***** ***** question because you never responded or replied positively. I am simply touching base. Let me know. Thanks!

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