LEGAL DOCTRINE OF ADVANCEMENT: Preventing a Windfall To a Qualified Beneficiary by Adeyemi Oshunrinade


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The legal doctrine of advancement presumes that gifts given to a person’s heir during that person’s life that is, before death, are intended as an advance on what that heir would inherit upon death of the parent. Assume that while alive, parent A had two children B and C; suppose also that A had $ 200,000 but before his death gave $ 40,000 to his son B leaving him with an estate worth $ 160,000 upon his death. Normally, if A died intestate that is, without a Will, and B and C were the only heirs, A’s estate of $160,000 would be shared equally between his surviving heirs B and C meaning each would be entitled to receive $80,000 from the deceased’s estate if the doctrine of advancement were not applied. The question is what happens to the $40,000 already received by B while A was alive?

In order to take in the intestate distribution of the deceased parent’s estate, a child (beneficiary) must allow the administrator of the estate to count as part of the distribution shares the value of any property real or personal that the decedent, while alive, gave the child by way of advancement. In England, by common law, any gift the child received during the life of the parent is considered advancement and a prepayment of the child’s intestate share.

The purpose of the doctrine is to ensure equality among the heirs and beneficiaries. The idea is that true equality can be accomplished only if gifts received during the lifetime of the parent are taken into consideration in determining the amount of the equal shares. When a parent makes advancement to a child and the child predeceases the parent, the amount of the advancement is deducted from the shares of the child’s descendants if other children of the parent survive. (See Dukeminier, Wills, Trusts and Estates 7th edition (2005) p. 114)

Assume in the case above the decedent leaves no spouse but the two children B and C, if the doctrine of advancement is applied, then the $40,000 already given to B while A was alive, would be calculated as part of the estate advanced to B for a total of $200,000 to be divided among B and C. Thus the estate would be valued at $200,000 and each child would still be entitled to $100,000 each.

To prevent a windfall to B and to allow for equal share among the two, the doctrine of advancement will take effect and intervene to share the estate equally between the heirs. The purpose, to avoid enriching B beyond that envisioned by the testator; B has already received $40,000 in advancement while A was alive; thus, he receives only $60,000 from the estate. His sibling C takes $100,000 share in the estate. If on the other hand B had been given property worth $110,000 as an advancement B would not be required to give back a portion of the advancement because it is clear the decedent wanted B to have at least $110,000. However, decedent’s remaining $90,000 would go to C.

Many jurisdictions in the United States have enacted statutes designed to ease the application of the doctrine, by requiring that the testator must express in writing whether or not the gift is intended to be counted as advancement against the estate. Under the Uniform Probate Code, adopted in whole or in part by some states, there is a requirement that either the decedent or the beneficiary express in writing whether the property was intended to be treated as advancement against the estate.

To prevent unreasonable distribution and unwanted conflicts among heirs and survivors, it is always better for the testator to clearly express in writing how he desired his property to be shared among his heirs. It is always reasonable for a parent to indicate in writing whether or not gifts given to a child during a lifetime either real or personal, be considered an advancement upon the estate. Failure to so indicate may trigger the default rule and a distribution not intended by the testator.

Dr. Adeyemi Oshunrinade [E. JD] is an expert in general law, foreign relations and the United Nations. He is the author of ‘Murder of Diplomacy’ (2010) ‘Wills Law and Contests’ (2011) and ‘Constitutional Law-First Amendment’ (2012) Follow on Twitter @san0670.

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Categories: LAW

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