Understanding Inter Vivos Transfers

Common Types of Inter Vivos Transfers

• Gifts: The transferor voluntarily gives property to another person without payment.
• Transfer on Death (TOD) designations: A beneficiary designation that passes real estate or financial accounts at death, but is made and revocable during the transferor's lifetime.
• Joint ownership: Adding another person to a deed or account as a joint owner with rights of survivorship.
• Trust funding: Transferring assets into a revocable or irrevocable trust during the transferor's lifetime.
• Deeds: Conveying real estate during lifetime, such as a general warranty deed or quitclaim deed.
• Transfers under a power of attorney: An attorney-in-fact transfers the principal's property under authority granted in a power of attorney document.

Why Inter Vivos Transfers Are Challenged in Court

Inter vivos transfers are frequently challenged in probate and civil litigation. Common grounds include:

• Lack of capacity: The transferor did not understand the nature and consequences of the transfer.
• Undue influence: Someone in a position of trust pressured or manipulated the transferor into making the transfer.
• Fraud or duress: The transferor was deceived or coerced.
• Unauthorized transfers: An attorney-in-fact or fiduciary exceeded their authority, especially transfers made after the principal's death, when a power of attorney automatically terminates.
• Wrongful retention: Assets were transferred or taken without a valid basis and are being withheld from the rightful owner or the estate.

Ohio Law and Burdens of Proof

When an inter vivos transfer is challenged, the party seeking to set it aside generally bears the burden of proving the transfer was invalid. However, when a confidential or fiduciary relationship exists — such as between an attorney-in-fact and the principal, or a caregiver and an elderly person — courts may shift the burden, requiring the recipient to prove the transfer was fair, voluntary, and made with full knowledge. A power of attorney terminates upon the principal's death under Ohio law, so any transfer made by an attorney-in-fact after the principal's death is generally void.

Evidence Used in Inter Vivos Transfer Cases

• The deed, TOD designation, account documents, and other transfer instruments.
• The power of attorney and its specific terms.
• Medical records and documentation of the transferor's mental capacity.
• Financial records and account statements.
• Communications, texts, and emails.
• Witness testimony from family, caregivers, bankers, and medical providers.

An important note

Deadlines and legal theories vary depending on the type of claim — such as breach of fiduciary duty, fraud, or an action to set aside a deed — so it is important to act quickly and consult an attorney.