My late mother played the violin and the viola professionally. She kept her violin, the viola, and two bows, even after she retired; and gave them to my brother's wife, who is a violinist, about five years ago as a gift. My brother's wife plays violin, but was not playing viola at the time of the gifting. My husband, on the other hand, who was professionally acquainted with my mother in the music world, does play viola. I put in a call to the sister in law, asking her if she would be willing to lend the viola to my husband. She told me that she was learning to play it, and that she did not want to give it up. The most recent developments are that our mother died at the end of December, and left a living trust. These instruments are not listed in the trust, however, I am of the opinion that if the sister in law were to SELL any of the instruments, that the funds from the sale would come under the estate and be divisible according to the terms of the living trust. (which would be three ways; myself, my brother, and my sister). My questions: are the violin, the viola, and the bows part of the estate after our mother's death? Is the fact she gave them to our sister in law before she died causing them to be 'free and clear' from any living trust distribution action?
1 Answer from Attorneys
If your mother "gifted" the property to your sister-in-law then it falls outside her estate because she would no longer own it.
That being said, there are legal hurdles that need to be cleared in order for a transfer of property to be considered a "gift" (intent, delivery, acceptance, etc.).