When a person passes away, a will is meant to clear the air on how their possessions would pass onto their descendants. Wills are meant to avoid the difficulties and confusion surrounding an intestate death, wherein the state decides how property is divided based on its probate code.
But there are cases when a will can end up creating even more confusion – especially when the person who passed away has unintentionally been sending mixed messages. There is nothing legally stopping someone from creating a will and then adding a name onto the deed of their property, or putting a house on a will in one person’s name but subsequently listing someone else as beneficiary for the house.
Estate planning is important because it’s easy to turn the distribution and rightful execution of even the simplest estates into a matter of mayhem and confusion. In the case of a deed that conflicts with a will, there are several factors that determine how the situation is likely to play out – and without knowing the specifics, there is no clear way to describe what’s going to happen.
To keep it simple – a person can only give what they own, and if they sign their home away or sell their property then they effectively can’t possess it or pass it on in a will. Yet there are different types of deeds, and different ways to include someone on your deed without completely giving up your rights to the property. In most cases, then, the specifics of the deed take precedence.
To figure out whether a person’s deed will conflict with their will in any meaningful way, it’s important to understand what type of deed it is, what type of ownership it entails, and what that might mean.
In the context of real estate or property, a deed is a legal document that describes ownership over property, typically during the transfer from one person to another. The title of a property describes how said property is owned, and more specifically, who owns it.
A deed is used to transfer the title of a property from one person to another. A deed must be drafted, signed, and it must be notarized and filed in the public records to be valid. Like many other legal documents, a deed needs witnesses. This is to confirm that both parties were consenting and of sound mind, and to confirm that the deed was indeed signed and notarized, rather than being fabricated as an object of fraud.
Deeds don’t always describe a total or immediate transfer from one individual to another. For example, property can be owned by several people at once. While tenancy in entirety describes a single individual, more than one person can own a home. If a title lists several people who own the property as joint tenants, then they each own a portion of the property.
In California, most married couples own their property in joint tenancy. In California, joint tenancy also means parties have an equal right to the entire property, and that the ownership is divided into equal shares; if three people own a home, they each own a third. If one passes away, then unless a trust determines otherwise, that individual’s right over the property transfers to the other two people. Tenants in common, on the other hand, own unequal shares of a single property.
When selling a home or otherwise transferring property, a deed will describe who the old owners were, and who the new ones are. Their names are then amended onto the title, changing in accordance with the deed.
Say, then, that you own property with someone else and put said property in your will, while simultaneously they have the right of survivorship – describing that your portion of the property passes onto them after death. Or, alternatively, that the deed describes a transfer-on-death of the property onto someone in the family, while the will describes a transfer of the property to someone else. What takes precedence? Usually, not the will.
A last will and testament is a document describing how a person wishes their property to be divided after death. When they die, their will and death certificate are brought to a probate court, an administrator or executor is appointed, and the process of distributing the estate begins…unless there are legal documents that take precedence.
In reality, estate planning ideally involves more than a single document – there are many documents that could override a will. Most of these are beneficiary designations: deeds that describe how an account or property will belong to person such and such after you, the original owner, pass on. Here are a few examples of documents and designations that override a will:
These designations and documents override a will for different reasons. In the case of a trust, for example, property within a trust typically does not completely belong to the grantor of the trust anymore, and thus does not go through probate, or belong in a person’s will. Beneficiary designations, Totten trusts or TOD designations and the right of survivorship all supersede any mention of associated property in a will.
A living trust can be used to transfer the grantor’s portion in joint tenancy onto a designated beneficiary. But a will cannot. The lesson therein is that estate planning is a delicate matter, and it’s important to have an overview of the bigger picture before relying on a single document.
Some documents supersede others in certain ways, which is why it’s important to gather your paperwork and go over it with an estate planning expert to make sure that you’re not contradicting yourself with conflicting estate planning documents.
It is quite easy to make a mistake that can cost your family months of time (and potential emotional heartache) and thousands of dollars in legal fees. If a deed contradicts a will, chances are that it would win in a conflict – but to be sure, a more thorough investigation is needed.
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