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Can a Gift in a Will Come With a Condition?

A last will and testament, sometimes called simply a will, is an important part of an estate plan. A will is a legal document that is designed to provide your loved ones with instructions for how to handle your possessions and final affairs. The person who makes the will is called the testator. The testator typically decides how to divide assets and gives instructions for distribution. A will gives the testator control over gifting their assets after they pass away, and the instructions can come with conditions.

What is a Conditional Gift?

A will can include a provision that allows for the distribution of an asset only after a specific condition has been met. This is called a conditional gift. The condition must be met before the particular asset can be given to the beneficiary. There are two main types of conditional gifts, including condition precedent and condition subsequent.

Condition Precedent

A condition precedent is a condition that must be met before a beneficiary is allowed to receive distribution. A specific condition that is stated in the will needs to be met in order for the asset to go to the beneficiary. The will should include a time limit in which the condition must be met in order to receive the distribution. An example of a condition precedent is when a grandparent leaves a sum of money to a grandchild with the condition that he or she graduates from college within a specific number of years or by a certain age.

Condition Subsequent

A condition subsequent is a condition that can revoke the distribution of an asset from a beneficiary. For instance, a testator may leave property to someone as long as they do not use it for a specific purpose. If the beneficiary breaks the condition, the distribution is revoked. This type of condition can be more difficult to manage and might be a less effective way to require a beneficiary to do something or not do something in the future.

Are There Any Conditions That Cannot Be Included in a Will?

A testator may put any condition they want into a will, but whether the court will enforce them is another matter. Some conditions cannot be enforced by the court if they are illegal. For instance, a testator cannot require a beneficiary to participate in illegal activity in order to get an inheritance. A testator cannot mandate someone to change religions and cannot require someone to get married or divorced from a specific individual. These types of conditions are not enforceable. A beneficiary could challenge the legitimacy of the will in court.

Using Conditions in a Will

While you may want to use conditions in your will, it is important to do so in a manner that will be legally enforceable. Make sure the condition is as clear and precise as possible. Another important tip is to include a specific date or length of time in which a beneficiary has to complete a condition. Open-ended conditions can be challenged more easily. Tell the beneficiary about the condition when you make your will. That way, the person is not surprised when the will is read. Use conditions that are achievable and lawful. Have an attorney assist with drafting your will to make certain that it is properly written.

Wills and trusts are an essential part of any estate plan. To learn more, call us today at Moen Sheehan Meyer, Ltd. at (608) 784-8310 or by email.

Published March 18, 2024
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