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Wills and Deeds - Which Takes Priority

Updated on
March 30, 2021
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In this article, we will discuss what happens when a will and a deed conflict, which one takes precedent, and answer:

  • How does the deed impact the title of the property?
  • How might a will and deed conflict?
  • What documents override a will?
  • What if there is a question about if joint tenancy exists?

A person who wishes to have his or her assets distributed according to a certain “road map” may execute a will. A will provides a personal representative of the estate called an executor with instructions of how to distribute property after all claims (debts) against the estate are settled. If someone does not leave behind a will, the property will pass to heirs under a process set out in the law, called intestacy.

Sometimes a will may be ambiguous as to its true intention, or the decedent (the deceased person) may have acted in a way not in accordance with the will. Also, there may be conflicts with the beneficiary designation of some other document, like a bank account, life insurance beneficiary designation, or the  deed to a property. The law allows a person to change beneficiary designations without changing the will, or vice versa.  The court will look to a decedent’s intent in these circumstances.

How does the deed impact the title of the property?

As we discussed in our Illinois article on this same issue, it is important to understand the difference between the deed and title of the property. A deed is a physical document transferring title of a property from one person to another, in a way that evidences the transfer of property. 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 through a deed.

Under Iowa law, a deed for buying or selling the home must be drafted, signed, and notarized, and entered into public record by the county reporter as evidence of transfer. It must contain the names of the current owner (the grantor) and the new owner (the grantee), the legal description of the property, and signed by the grantor

The title is included in the deed and describes the ownership of the property. Sometimes the grantor may leave property to more than one person. In Iowa, a title can describe ownership of property by more than one person in the following ways:

  • Tenancy in Common- In a Tenancy in Common property interest, the deed will grant multiple co-owners interest in the property. Each owner will have the right to use all of the property, and cannot prevent the other owners from using part of the property. So, if property is left to Bob and Jim as tenants in common, Bob cannot build a barrier and refuse to let Jim use a portion of the property. The co-tenants have the right to sell, gift, or encumber (such as by placing a lien or mortgage)their portion of the property interest. When an owner dies, their interest becomes part of their estate and is administered according to their will, trust, or intestate law. There is no right of survivorship (described below) in a tenancy in common.
  • Joint Tenancy with Rights of Survivorship- in a joint tenancy with a right of survivorship, all co-tenants have an equal ownership with legal access to the entire property, the same as tenants in common. The difference is, when one co-tenant dies, their ownership is automatically absorbed by the other owners instead of becoming part of their estate. So, if Bob and Jim own a property as tenants in common, and Bob dies, Bob’s interest is automatically given to Jim, and no portion of the property goes into Bob’s estate.  Many married couples own property in joint tenancy.

The above two forms of ownership should be considered by owners of property looking to give it to someone else, was the chosen interest will determine whether the property enters probate or not.

How might a will and deed conflict?

A will may list one or more beneficiaries of a title, but the deed lists another name. The deed may also not match the name listed in the will. As this can create confusion for courts, personal representatives, and interested parties, it is important to make sure the will and deeds match up with a person’s actual intent.

What documents override a will?

  • The beneficiary designation on a life insurance policy
  • A living trust
  • Right of survivorship on a joint tenancy title

If a decedent owned a property in joint tenancy, their ownership interest would pass immediately to the co-tenant upon their death, regardless of what the will says. If the property was owned by tenants in common, the decedent is free to distribute their property interests in the will.

Living trusts, trusts created during the decedent’s lifetime, and beneficiary designation in life insurance policies will also avoid probate.

What if there is a question about whether a joint tenancy exists?

In the absence of evidence the grantor intended to create a joint tenancy with rights of survivorship, the court will imply the owners hold the property as tenants in common. The court will review the intent of the parties to view whether a joint tenancy was created. The courts used to rely on a formal process called “the four unities” (interest, title, time, and possession had to exist at the same time). While proof of these may be helpful to Iowa courts, they are not necessary to show someone intended to create a joint tenancy.

It is a bit more difficult to end, or sever, a joint tenancy. Intent of the parties is also closely examined, but there also must be some action. An instrument, or document, must be created showing the intent to sever the joint tenancy. One party may sever the joint tenancy on its own, referred to as a “unilateral severance.” If the only document which shows the person intended to sever the joint tenancy is a deed which is faulty and unenforceable, the courts have held this will not sever the joint tenancy.

Also, if the property is a homestead under the law, there are protections for a surviving spouse who wishes to continue living in the homestead. One spouse cannot sell or otherwise give away the property unless both spouses agree in writing (or their agent under a power of attorney).

If the court finds the joint tenancy is severed, the owners would hold the property as tenants in common, with no rights of survivorship. When the owners die, their property interest would enter their estate.

This can be a difficult area of the law. For assistance, please contact one of our estate attorneys, 630-327-6666.

 


Wills and Deeds - Which Takes Priority
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