Probate & Trust Law Section Conference Manual ... - Minnesota CLE

A. The Doctrine of Advancements, Hotchpot and Minnesota’s Treatment of
Intervivos Gifts vs. Loans.
Advancements. At common law, any gift given to a child during a testator’s lifetime
was presumed to be an advancement, or prepayment of the child’ s share of his
parent’s estate. A child would bear the burden of proving that the lifetime transfer was
intended as a gift as opposed to an advancement.
Hotchpot. When the doctrine of advancement is applied, the donee of the lifetime gift
must allow the value of the lifetime transfer to be brought into the “hotchpot” if the
done wants to share in the decedent’s estate. Where the advancement reaches the level
where the donee would theoretically have to “put back” in the hotchpot in order to
ensure equal distributions to all beneficiaries, the donee may elect to stay out of the
hotchpot.
The Restatement of Property (Third) Will and Donative Transfers defines an
advancement as follows:
“An inter vivos gift made by an intestate decedent to an individual
who, at the decedent’s death, is an heir is treated as an
advancement again the heir’s estate if the decedent
acknowledged in writing that the gift was so to operate.”
Due to difficulties ascertaining a donor’s lifetime intent, many states have gone in the
opposite direction of the doctrine of advancement. Minnesota is one such state having
adopted the Uniform Probate Code that declares a gift as an advancement only if the
donor declares in a contemporaneous writing or the donee acknowledges in writing that
the gift is an advancement.
Mary Frances M. Price, J.D.
EDINA ESTATE AND ELDER LAW P.A.
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