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At this time of year, our social media feeds, emails, and screens are filled with opportunities for giving. Black Friday and Cyber Monday speak to the idea of giving to family and friends. Giving Tuesday highlights organizations and charities that solicit money contributions. Many nonprofits still send solicitations via mail, some even with complimentary holiday-themed address labels or greeting cards. Sometimes, you can even score a calendar.
The idea of giving is what sets apart the practice of trusts and estates from other areas of law. In the first year of law school, the students learn a lot about contracts and property and consider the idea of “consideration” — the benefit which is bargained for between the parties in a contract. Simply, one consideration is exchanged for another. Gifting or donating, either during someone’s lifetime or after, via a testamentary vehicle, does not deal with the concept of consideration. One individual makes a transfer to another, with nothing received in return. As such, choosing whom to gift items or money to during one’s lifetime, or after, should be taken seriously.
When consulting with clients, after discussing their family structures and general wishes for the disposition of their assets, I raise the issue of bequests to charities or organizations outside the family. Younger families tend to defer this issue until they are older, more established, and their children do not have as many needs. Older people, especially those without close family, sometimes choose this as an option in their last wills, either entirely or in part.
One client, when asked, once quickly responded: “Charity begins at home.” When we discussed this further, it seemed that the client understood the old proverb to mean that his estate would be reserved for his family — specifically, his children — and not any organization. The intimation was that his gifts, during and after his life, constituted charity as his family members, he deemed, needed the assets or deserved them more than other institutions did.
Whether my client correctly used the proverb is questionable. The idea of charity and what it means varies according to cultural, religious, and philosophical views. John Marston’s 1610 play “Histrio-Mastix,” mentions the idea of giving to others in your own home. Sir Thomas Browne echoed that sentiment in his 1642 text, “Religio Medici.” Some cite the Christian Bible as a basis for the idea that charity begins in the home
But is this what the proverb means? Or does “Charity begins in the home” refer to actions inside the home? In other words, do our children learn to be charitable by the way we act in our own personal lives? Further, what constitutes a home? Is a home the community where you reside? Does such a proverb mean to give to organizations in your community, but not afar?
Choosing whether to give to organizations outside of the family is a personal preference, and, if you elect to, it is important to make certain to do so effectively. There are many ways to donate to a cause before or after death. Direct donations are likely the easiest and, in the online age, tapping in a credit card number for a friend’s fundraiser or to make a quick donation is no bother. For larger gifts, you may choose to meet with the development office in the chosen organization to discuss where the monies should be directed and how the payments will be made. For significant gifts, establishing a charitable trust may be chosen so that other income and tax benefits may be achieved. Tax considerations are a significant component of gifting, and the ramifications change depending on whether a nonprofit organization or an individual is the recipient.
Should you wish to include a charity in a last will and testament, it is important to record its legal name and address and to be precise in what is to be given. For instance, you may choose to give an unrestricted gift to be used for general purposes or may want the funds to be used only for a specific project. For certain significant bequests, notifying the charity in advance is a prudent way to ensure that your final wishes are carried out. This is especially the case when a charity, instead of family members, may be chosen as a beneficiary. When the charity knows that it is included in a last will and testament, it will inquire upon someone’s death as to the status of the last will, to confirm that the bequest still exists.
Whether charity begins or ends in the home, it is important to properly express your wishes in a last will and testament. If you’re especially giving, the recording of gifts throughout your lifetime, to family, friends, or institutions demonstrates intent and makes for a better understanding among family and friends when you pass away. Moreover, a giving individual’s legacy far surpasses any amount of money, in or outside of the home.
Cori A. Robinson is a solo practitioner having founded Cori A. Robinson PLLC, a New York and New Jersey law firm, in 2017. For more than a decade Cori has focused her law practice on trusts and estates and elder law including estate and Medicaid planning, probate and administration, estate litigation, and guardianships. She can be reached at cori@robinsonestatelaw.com.