Does a Will Supersede a Gifted Deed?

by Marie Murdock
A will can't convey property the decedent didn't own.

A will can't convey property the decedent didn't own.

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Beneficiaries under a will may be disappointed if they discover upon the death of the maker of the will that he had already given away the family’s home by gift deed. A gift deed conveys property without a monetary purchase price. If the person who wrote the will, called the testator, clearly intended to convey the property, there may be little the beneficiaries can do to re-acquire it as estate property. If, however, foul play is suspected or mistakes or flaws exist in the property transfer, the beneficiaries may ask the court to determine property ownership.

Specific Bequest

A will may be very general in describing property that transfers under its terms such that it gives or devises “all property that I own at the time of my death.” A specific bequest under a will, however, is a gift or devise that is specifically described so that it is identifiable from other property in the estate. Real estate may be described with a detailed legal description such as would appear in a deed or it may simply be described as the decedent’s “home and surrounding acreage.” If property specifically devised to a beneficiary under a will was deeded to someone else prior to death, the beneficiary who was to receive the property will likely lose all rights to it. The legal term for this loss is “extinction by ademption.”

Partial Conveyance

If the testator only deeded away part of the specifically devised property or a percentage interest in the whole, the beneficiary may receive the remainder upon probate even though the will stated he was to receive the entire property. Some state courts may attempt to determine the testator’s intent when deciding a property dispute involving extinction by ademption or by partial ademption. If the court decides that the testator did not intend to disinherit the named beneficiary, it may rule that the specific bequest should be interpreted as a general one and allow the beneficiary to inherit other property or money in its place.

Deed Delivery

One of the key components of property transfer is deed delivery. A gift deed that is not delivered, meaning it is not given to nor accepted by the grantee or property recipient, does not convey property. If the deed is delivered to the recipient’s attorney, trustee or other person to hold on her behalf, however, delivery will likely be considered complete. If the property owner prepared and signed a deed and placed it in his safe deposit box for delivery after his death, then the property may transfer through the will instead of the undelivered deed. Property conveyed by a will generally transfers upon probate subject to debts or claims against the estate.

Fraud or Coercion

A relative or other caregiver who was in constant contact with an elderly property owner prior to his death may have convinced or deceived the owner into gifting property to him that was intended for a beneficiary under his will. If there is sufficient proof that the property owner was unduly influenced or mentally incompetent when the gift deed was signed, the court may set the conveyance aside.