Practice Areas

Probate Case Summaries

Money transferred to child by parent presumed to be a gift. In a South Dakota case, a mother transferred to her son $25,000 approximately 9 months before his death. After he died, the mother filed a claim against his estate, claiming the $25,000 had been a loan and not a gift. The estate objected and refused to pay the mother's claim. The South Dakota Supreme Court determined that transfers of property or money from parent to child are presumptively gifts, and a parent seeking repayment of a loan against the child's estate must produce evidence sufficient to overcome that presumption, as well as ultimately proving the validity of the loan. The Supreme Court remanded the case back to the trial court to determine whether the mother had evidence that it was a loan. Estate of Dimond, 2008 SD 131.

Trust document transferred interest in property in absence of deed. The Nebraska Supreme Court determined that where the decedent created a revocable trust but had not properly transferred ownership of her real property to the trust prior to death, the trust agreement operated as a deed transferring real property because the trust document satisfied each one of the statutory requirements for a deed. The trust document clearly demonstrated the decedents desire to transfer her property to the trust. It was also equitable to transfer the property as the decedent’s wishes were unambiguous in the trust document. Chebatoris v. Moyer, 276 Neb. 733 (2008)