In this article, we discuss what happens when a will and a deed conflict, which one takes precedent, and answer the following questions:
The purpose of a will is to make apparent the decedent’s intentions for what should happen to his or her assets upon death. It’s one type of estate planning tool, albeit a low powered one, that should simplify the probate process and keep the decedent’s estate from being administered via the state’s intestacy laws.
But what if the will is ambiguous, or the decedent was sending mixed messages to his or her heirs before death? Furthermore, what if the will conflicts with the beneficiary designation of some other document, like a bank account, or the deed to a property? Nothing legally stops an individual from creating a will and listing one or more beneficiaries for an asset, but not changing those listed on other accounts or a deed. Ultimately, the decision is left to the court to determine the decedent’s intent.
To better answer this question, it’s crucial to understand the difference between a deed and a title. A deed describes the event of transferring the title of a property from one person to another. Think of the deed as the legal evidence of the transfer of property from one owner to another. The title describes how the property is owned, the right to use and modify the property how the owner sees fit, and the owner’s ability to transfer interest or a portion of the owner’s ownership to others via a deed.
When buying or selling a home, or transferring a portion of ownership, a deed must be drafted, signed, and notarized. It will then be entered into the public record as evidence of the transfer. This process also requires witnesses to certify that the parties consenting to the transfer were of sound mind and in no way forced to sign the document.
The title isn’t a separate document that is included within the deed, but rather a portion of the deed that described the ownership of the property. However, the deed and the title must line up. In Illinois, a title can describe ownership in a property three ways:
The most common form of conflict between a deed and a will is seen when the will lists one or more beneficiaries for an account, title, etc, but the deed lists another name; or the title doesn’t match the names listed in the will. What it ultimately comes down to is making sure that your beneficiary designations in your estate planning documents line up with what you have listed on your accounts. Also, deeds aren’t always related to property transfers. Deeds are simply legal documents that describe the transfer of something from one person to another.
Several documents will override a will, but not all for the same reason, including:
Some of these override a will because the property or asset listed is legally owned under a different entity and avoids probate altogether, such is the case with a trust.
Parsing out the hierarchy of one legal document or agreement over another in order to make haphazard estate plans work, or just creating a will with a generic blanket state that tries to cover everything, will only result in more headaches for your beneficiaries. The easiest way to avoid conflicts between your existing assets’ beneficiary designations and your estate planning documents is to work with an attorney who can double-check everything and confirm that it all lines up with your wishes.
O'Flaherty Law is happy to meet with you by phone or at our office locations in: