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Between A Will And A Deed, Which One Takes Priority In Illinois?

Article written by Attorney Kevin O'Flaherty
Updated on
October 15, 2020

In this article, we discuss what happens when a will and a deed conflict, which one takes precedent, and answer the following questions:


  • How Does The Deed Impact The Title Of The Property?
  • How Might A Will and Deed Conflict?
  • What Documents Override A Will?


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.


How Does The Deed Impact The Title Of The Property?


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:


  1. Tenancy In Common. Tenancy in common is the defacto option for co-ownership of property in Illinois. If no specific title is stated during the transfer of the property, the state will presume the property is held as tenants in common. This means that each owner owns a portion of the property, such as 3 people owning a third, 2 people owning a half, etc. This type of ownership does not mean that each person owns a physical fraction of the property and can only do what they want with that portion, they have the right to use all of the property. With tenancy in common, you have the right to gift, sell, or encumber your portion of the property without consent from the other owners. Furthermore, when you die your interest becomes part of your estate and is administered according to your will, trust, or intestate law.
  2. Joint Tenants With Rights Of Survivorship. Similar to tenancy in common, joint tenants with rights of survivorship all have an equal share of ownership with an undivided possession right, meaning they have legal access to the entire property. The main difference is that when you die your ownership is automatically absorbed by the other owners instead of becoming part of your estate.
  3. Tenancy By Entirety. Tenancy by entirety can be thought of as a specialized form of joint tenancy with rights of survivorship, only available to married couples. Upon death, the decedent’s ownership automatically transfers to the spouse. This type of title also confers great protection from creditors, by blocking their reach from debts not jointly held by the married couple. For example, if one spouse has a business debt that is separate from the other, creditors would not be able to go after the other spouse’s portion of the home to resolve that debt.


How Might A Will And A Deed Conflict?


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.


What Documents Override A Will?


Several documents will override a will, but not all for the same reason, including:


  • Transfer On Death (TOD) deed on a home
  • The beneficiary designation on a life insurance policy
  • A living trust, revocable or irrevocable
  • Right of survivorship on a joint tenancy title


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.


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Between A Will And A Deed, Which One Takes Priority In Illinois?

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