Is my bequest entailed?
September 3, 2009 1:53 AM   Subscribe

Received a bequest that apparently has strings attached. Is this possible, and if so, is it enforceable?

I received as a bequest an item that has been in my family for several decades and valued somewhere between 1-10k. The executor of the will just informed me that accepting the bequest means I agree that I will never sell or dispose of the item, and if I do, I must first offer it to everyone in the family, and failing that, that any and all monies from the sale of the item must be returned to the estate and distributed the the primary beneficiaries of the will (of which I am not one).

I'm planning to ask for a copy of the will, but if it does indeed include that language, is this enforceable? I'm in California, in the United States if it pertains.
posted by arnicae to Law & Government (10 answers total) 1 user marked this as a favorite
Most common law jurisdictions have several schemes available for a testator's cold, dead hand to control their property from the grave.
posted by GPF at 3:58 AM on September 3, 2009 [1 favorite]

Your use of the term "entailed" in the title suggests that you have researched the issue somewhat.

Although I am not licensed in California, I can inform you that a condition like this is generally enforceable. A condition that prohibits sale or transfer to a Catholic, or to a Peruvian, would be regarded as contrary to public policy, but this one would generally not be.
posted by yclipse at 4:28 AM on September 3, 2009 [1 favorite]

Restrictions are completely possible - though I'm a little bit uncertain how it can be both forbidden to be sold, and also have restrictions on the use of monies gained by the sale.
posted by Tomorrowful at 5:32 AM on September 3, 2009

It essentially sounds like a loan. If someone loans you something with supporting documentation then you are responsible to follow the restrictions of that loan. Either take it and live by the restrictions or leave it. You are under no obligation to take it.
posted by JJ86 at 5:54 AM on September 3, 2009

I didn't know you could do this with chattels (i.e., things other than real property - land and so forth). But it sounds to me as if you've been offered the lifetime use of the item, not the item itself. You'll probably find that the terms of the will are that it gets passed down to someone else after your death. This entailment doesn't go on forever: most (all?) jurisdictions have a Rule Against Perpetuities that makes the entailment terminate within a fixed term of years or a term based on the lifespan of people presently living. But this would be a moot point to you, because you'd be dead.
posted by Joe in Australia at 6:19 AM on September 3, 2009

From a practical standpoint, it's probably not enforceable. First, someone has to find out you sold it. Second, they have to want to sue you. Third, they have to be willing to spend more than 10k to pull that off. Then, they have to prevail, get a judgement, and collect. No one I know would go to that trouble for $10k. It would also take a few years.

Also, if you DO want to sell it, you can find a buyer, then offer it to the family/estate for the same price. They can buy it or not. Either way, you get the money.
posted by FauxScot at 8:26 AM on September 3, 2009

Response by poster: LOL- my use of the word 'entailed' comes solely from the Victorian novels I read growing up, where everyone and their uncle was a member of the nobility with a number of properties that they could not dispose up yet which cost a staggering amount to keep running.

Related question: there is apparently no clause about what should happen if/when *I* die. Can I leave it to whoever I please, or does that constitute disposing of it (even post-humously)?
posted by arnicae at 8:37 AM on September 3, 2009

Generally speaking it depends on the language used. It's possible that the language was merely prefatory (that is, it only states the testator's preference and has no legal effect). Is the executor an attorney?

You should definitely get a copy of the will. An attorney should be able to give you a clear answer on the cheap. Heck, if you're in the market for having your own will drawn up, the attorney may answer the question 'for free.'
posted by jedicus at 9:19 AM on September 3, 2009

I've seen this done with real estate and a friend of mine is embroiled in a nasty battle over a piece of land with even more complex and ambiguous conditions. It is both possible to do this and make it stick and possible to do it poorly and have it be unenforceable. As you may have suspected, the only way to be sure would be to have a competent attorney in the appropriate jurisdiction review it.
posted by Lame_username at 11:22 AM on September 3, 2009

From a practical standpoint, it's probably not enforceable.

Unless someone who would otherwise inherit it (or be in the class of people who might inherit it) is litigious. If arnicae has a "life interest" in the item then he can be sued by the remaindermen (what a lovely word!) if he breaches the terms of the trust. This sort of thing used to be common in real estate: it was a way of providing for people without letting the land pass out of the family. The tenant had all the rights of an owner, but could be sued if he attempted to sell the land or "waste" it.
posted by Joe in Australia at 5:27 PM on September 3, 2009

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