Distribution of assets to heirs

S

Stelhanie

New Member
Jurisdiction
California
Can my brothers wife not release items my brother verbally gave to his nephews before he passed?

My brother recently passed away, he verbally said that his nephews will inherit certain belongings of his when he passes. This was discussed all together with the wife, the nephews and his immediate family (mom & 2 sisters). Wife agreed. Now she won't release the items to the boys. Is there anything we can legally do? There was no will. We did not ask for any contract because the wife agreed and we did not know she wouldn't honor my brothers wishes after his death. Is this a legal case to pursue? Thank you
 
Stelhanie said:
Can my brothers wife not release items my brother verbally gave to his nephews before he passed?

My brother recently passed away, he verbally said that his nephews will inherit certain belongings of his when he passes. This was discussed all together with the wife, the nephews and his immediate family (mom & 2 sisters). Wife agreed. Now she won't release the items to the boys. Is there anything we can legally do? There was no will. We did not ask for any contract because the wife agreed and we did not know she wouldn't honor my brothers wishes after his death. Is this a legal case to pursue? Thank you
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Yes. She can legally do this. it isn't nice or respectful of his wishes, but without a will she is legally allowed to do this.
 
Stelhanie said:
There was no will.
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Under CA's law of intestate succession the surviving spouse inherits 100% of the community property.

Presumably, everything they owned was community property.

His oral bequests are not enforceable.

What kind of items are they?

Are they of sufficient value or interest to the nephews that they would be willing to offer money to the widow for them?

Or do they only want them if they are free?
 
Did he say "When I die, you can have <this>", or did he say "This is yours now"?
 
adjusterjack said:
I don't see where that makes any difference.

Please elucidate, oh wise and wonderful wizard.

;)
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If he said "When I die, you can have <this>", then that item passes to the wife.

If he said "<This> is yours now", then it does not pass to the wife, as it belongs to whomever it was gifted to at the moment it was gifted.
 
Looking at the OP again, I can see this was discussed as an inheritance, not as a gift while alive. My question and comment above, while accurate, are irrelevant.
 
Stelhanie said:
Can my brothers wife not release items my brother verbally gave to his nephews before he passed?
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Of course she can do it, but that's not what you meant to ask. Also, according to the second paragraph of your post, your brother did not "verbally give" anything to your nephews. Even if he had "verbally given" something, "[a] verbal gift is not valid, unless the means of obtaining possession and control of the thing are given, nor, if it is capable of delivery, unless there is an actual or symbolical delivery of the thing to the donee." Cal. Civil Code section 1147.

Stelhanie said:
he verbally said that his nephews will inherit certain belongings of his when he passes. This was discussed all together with the wife, the nephews and his immediate family (mom & 2 sisters). Wife agreed. Now she won't release the items to the boys. Is there anything we can legally do? There was no will.
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A statement by Person A that Person B "will inherit" something upon the speaker's death is completely meaningless unless Person A backs it up by making a will or Person B is entitled to the thing under the state intestacy law (i.e., the law that says who gets what when a person dies without a will.

Zigner said:
If he said "<This> is yours now", then it does not pass to the wife, as it belongs to whomever it was gifted to at the moment it was gifted.
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How do you reconcile that statement (without adding any previously unstated facts) with Civil Code section 1147?
 
zddoodah said:
How do you reconcile that statement (without adding any previously unstated facts) with Civil Code section 1147?
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What I said doesn't actually need reconciliation, but I agree that it would need expansion.
I agree that just saying it doesn't necessarily mean the gift is complete, however, it might mean it under the right circumstances. We don't have enough facts to know how that would work in this situation.

For example, if I tell someone that they can have my tv, and they say "thank you, I love my new tv", but decide to leave it on my shelf while they go pull their car into the driveway so they can load the tv into the car, would you agree that it's now their tv, or would you argue that it doesn't belong to them until they pick it up to walk out with it?
 
Zigner said:
For example, if I tell someone that they can have my tv, and they say "thank you, I love my new tv", but decide to leave it on my shelf while they go pull their car into the driveway so they can load the tv into the car, would you agree that it's now their tv, or would you argue that it doesn't belong to them until they pick it up to walk out with it?
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I would argue that it's not their TV until they physically take possession of it because I can revoke the so-called gift by the time they get back in the house.

That conforms with 1147.
 
adjusterjack said:
I would argue that it's not their TV until they physically take possession of it because I can revoke the so-called gift by the time they get back in the house.

That conforms with 1147.
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Agree. During the time between the verbal statement of intent to make a gift and the time when the donee pulls his/her car into the driveway, the donor absolutely may retract the intended gift.
 
zddoodah said:
Agree. During the time between the verbal statement of intent to make a gift and the time when the donee pulls his/her car into the driveway, the donor absolutely may retract the intended gift.
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But...if the donee walks up to the tv and hugs it...or picks it up and puts it on the table so it's closer to the door...is it his then?
 
Zigner said:
But...if the donee walks up to the tv and hugs it...or picks it up and puts it on the table so it's closer to the door...is it his then?
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That might constitute "symbolic" delivery.

The donee would, of course, have the burden of presenting "evidence" that the symbolic delivery actually occurred.

Suppose I pick up the TV after the alleged donee went out the door and put the TV back on the shelf.

What "evidence" does the donee have that the delivery actually occurred? Any photos taken, any recording made, any witnesses? An affirmative answer to any of that might be proof that delivery had taken place.

In the OP's case evidence of delivery, symbolic or otherwise, does not appear to exist.
 

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