When a person dies, beneficiaries might learn that the decedent made a deed that conflicts with the specific wording in his will. Generally, a deed will override the will. However, which legal document prevails also depends on state property laws and whether the state has adopted the Uniform Probate Code.
A life assignment is an arrangement in which one person gives another person the right to live at a property until he dies, and then the property passes to the remainderman, or beneficiary. This arrangement allows for possession of a property and ownership of the property to be split between two or more parties. Individuals routinely use this type of arrangement to provide for a spouse or other dependent, then pass the property onto heirs. The advantage of having a life estate is that the property can avoid going through the long and tedious probate process.
A deed transfers legal ownership of a property from one party to another. A life assignment transfers the legal interest to the remainderman and possession to a different party. Assuming that the deed is properly recorded in the county where the property is located, the deed effectively transfers all legal interests to the property, with the exception of any conditions provided in the deed. If a life estate deed is perfected prior to the grantor's death, he does not own the property at the time of his death, so his last will and testament will not apply.
Last Will and Testament
A last will and testament disposes of the property that a person has in her estate at the time of her death. If a person has executed a deed before her death, that property is not part of the person's probate estate and is not subject to any instructions under the will.
A gift that is specifically bequeathed in a will can be destroyed by the process of ademption. This legal term is effectively revoking a gift by destruction, sale or gift to another. The property can be adeemed if the decedent doesn't own it at death. If the specific bequest is not in the decedent's possession when he dies, the named beneficiary does not receive the asset or its cash equivalent.
Uniform Probate Code
Deeds generally override wills in states that recognize common law for their established property laws. However, many states have adopted the Uniform Probate Code. The UPC typically allows for the sale of the specifically-bequeathed property, with proceeds going to the intended beneficiary, so the will can override a deed in this scenario.
- Boynton Beach Elder Law: Avoiding Probate with the Enhanced Life Estate Deed
- U.S. Legal: Assignments Law and Legal Definition
- Winston Law Group: Understanding the Pros and Cons of a Life Estate
- US Legal: Ademption Law and Legal Definition
- Living Trust Network: Last Wills and Testaments
- Smith, Gambrell & Russell: To Adeem or Not to Adeeem . . . That Is the Question
Samantha Kemp is a lawyer for a general practice firm. She has been writing professionally since 2009. Her articles focus on legal issues, personal finance, business and education. Kemp acquired her JD from the University of Arkansas School of Law. She also has degrees in economics and business and teaching.